Davis v. Johns Hopkins Hospital

BISHOP, Judge. James Robert Davis, III (Bobby), by and through his mother and next friend, Deborah Davis, and James Robert ¹³⁶ Davis, Jr. and Deborah Davis, individually, appellants, appeal from the adverse ruling of the Circuit Court for Baltimore City granting the Motion for Judgment of appellee Johns Hopkins Hospital (Hopkins). ISSUES This case presents the issues of whether there was sufficient evidence: (1) to support appellants’ claim of negligence to require submission of the issue to the jury; (2) to support appellants’ claim of abandonment to require submission of the issue to the jury; (3) to support appellants’ claim of breach of contract to require submission of the issue to the jury; and (4) to support appellants’ claim that appellee failed to conform to the statutory requirements in producing requested medical records to require submission of the issue to the jury. Within the medical malpractice context, we will discuss two issues, for which there is little law in Maryland: first, the duty of a hospital to accept a patient, second, the abandonment of a patient by a hospital.

Also, we will address the issue of the duty of a hospital or related institution to disclose medical records under Md. Health-General Code Ann. § 4-302(d)(2) (1990). 1 FACTS 1. Procedural History Appellants initiated this case by filing a complaint with the Health Claims Arbitration Office. Md.Cts. & Jud.Proc. ¹³⁷ Code Ann. § 3-2A-04 (1989). The complaint contained three counts, all alleging that appellee negligently delayed in admitting Bobby to Hopkins causing Bobby to suffer severe brain damage.

Count I sought damages for Bobby’s pain and suffering; Count II was for the medical expenses, past and future, and an award to his parents for their loss of Bobby’s companionship; and Count III was for the disruption of the Davises’ familial and marital relationships. The case was arbitrated and the panel ruled in favor of Hopkins. In accordance with Md.Cts. & Jud.Proc.Code Ann. § 3-2A-06 (1989), appellants filed an Action to Nullify Award and a Complaint in the Circuit Court for Baltimore City. This complaint was the same as the complaint filed with the Health Claims Arbitration Office.

Four months later, appellants filed an amended complaint and election for jury trial. The amended complaint incorporated by reference the three counts of the original complaint and added four more. Count IV alleged that appellee refused to provide appellants copies of Bobby’s medical records in violation of Md. Health-General Code Ann. § 4-302 (1990) resulting in additional expense, pain and suffering. Count V alleged abandonment of Bobby and claimed that appellee refused to provide care to Bobby as agreed.

Count VI, which alleged breach of contract, claimed that appellee initially refused to treat Bobby as “promised, contracted and agreed.” Count VII alleged that appellee maliciously interfered with the Davises’ efforts to obtain medical care for Bobby elsewhere. The trial court granted appellee’s Motion for Summary Judgment on Counts III (disruption of familial and marital relationship) and VII (malicious interference with care), and partial summary judgment on Count II (medical expenses and loss of companionship of parents due to negligence) by limiting recovery to medical expenses. The court also granted appellee’s Motion for Bifurcation of the liability and damages issues. Appellants have not complained of these rulings and they are not before us.

Md.Rule 8-504; Jaco ¹³⁸ ber v. High Hill Realty, Inc., 22 Md.App. 115 , 321 A.2d 838 (1974). The remaining counts went to trial before a jury. After argument on Hopkins’ Motion for Judgment, the court granted judgment on Count IV (medical records) but denied judgment on the remaining counts. At the close of all the evidence, the court granted judgment in favor of Hopkins on the remaining counts: I (pain and suffering of Bobby due to negligence), II (medical expenses of Bobby due to negligence), V (abandonment) and VI (breach of contract). 2.

Medical History Bobby was born on December 12, 1979. At about eight months old, Hopkins diagnosed that Bobby suffered from status epilepticus, a disorder in which the victim sustains a series of prolonged seizures accompanied by difficulty in breathing. If not treated properly, a seizure could result in brain damage or death due to lack of oxygen. Bobby also suffered from status asthmaticus (long, unremitting asthma attacks) and cerebral palsy.

Bobby was a patient of Hopkins since these conditions were first diagnosed. Because Bobby lived with his family in Anne Arundel County, whenever Bobby would have an attack, emergency medical assistance was provided initially by paramedics of the Anne Arundel Fire Department (AAFD). AAFD protocol required that a patient in a seizure and in need of hospitalization would be taken to the nearest hospital which, in Bobby’s case, was. North Arundel County Hospital (NACH).

On one occasion, while receiving emergency treatment for a seizure, Bobby went into respiratory arrest at NACH. On another occasion, treatment was delayed because a staff member at NACH was unfamiliar with one of Bobby’s medications. Concerned that Bobby’s condition was too complex for the NACH staff, Mr. Davis sought to have Bobby transported directly to Hopkins for treatment of future seizures. In order to deviate from its protocol, AAFD officials told Mr. Davis that a letter was required ¹³⁹ from Hopkins stating that it was medically acceptable to transport Bobby directly to Hopkins.

After Mr. Davis conferred with Dr. Shlomo Shinnar, one of Bobby’s neurologists at Hopkins, the following letter was prepared on the Hopkins’ letterhead, signed by Dr. Shinnar and his superior, Dr. John M. Freeman: February 9, 1981 Department of Neurology Chief Roger C. Simonds Emergency Medical Service Division Anne Arundel County Fire Department P.O. Box 276 Route 3 Millersville, MD 21108 Dear Chief Simonds: RE: James Davis 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 neurology. 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. ¹⁴⁰ Sincerely, Shlomo Shinnar, M.D., Ph.D. Department of Pediatric Neurology John M. Freeman, M.D. Director Pediatric Neurology Department In the event Bobby could not be treated at Hopkins, Dr. Shinnar and other Hopkins physicians provided the Davises with “To Whom It May Concern” letters that listed the dosages of his current medication, the medication necessary to stop his seizures and other instructions on how to manage his condition. As Bobby’s condition and thus his treatment changed, the letters were updated. Seven letters were drafted and delivered to the Davises.

The Davises always carried a copy of the latest letter with them. In August 1982, Bobby was taken to the Medical College of Virginia Hospital because he began seizing while at Kings Dominion, an amusement park nearby. Through the use of the latest letter the paramedics and the doctor at the hospital properly treated Bobby. Based on the receipt of the February 9, 1981 letter, Chief Simonds of the AAFD directed the paramedic units to transport Bobby directly to Hopkins.

As a result, from February 9, 1981, until July 1982, Bobby was transported to Hopkins nine times by ambulance and twice by helicopter. Hopkins never designated which method of transportation was preferable. In July 1982, the AAFD decided always to transport Bobby by helicopter, weather permitting. An AAFD mobile paramedic unit would take Bobby to a rendezvous point where a waiting helicopter would transport him to Hopkins.

Between July 1982 and March 2, 1983, Bobby was transported to Hopkins eight times by helicopter and once by ambulance because of fog. By ambulance, the trip from the Davis’ home to Hopkins took approximately thirty five minutes. By helicopter, the same trip took approximately twelve minutes plus a few minutes for the time to ¹⁴¹ travel by ambulance from the Davis’ home to the rendezvous point. Bobby’s mode of transportation determined the unit at Hopkins to which he was delivered.

When brought by ambulance, he arrived at the Pediatric Emergency Room located on the first floor. When brought by helicopter, he was landed on the roof of the Children’s Center (14th floor) and then taken to the Pediatric Intensive Care Unit (PICU) located on the 7th floor. The PICU at Hopkins is part of the Maryland Institute for Emergency Medical Services System (MIEMS). See Md. Education Code Ann. § 13-103 (1989).

The MIEMS System is designed to provide emergency care to persons throughout Maryland and Washington, D.C. Involved are hospitals, state and county agencies that provide treatment and transportation to hospitals, and a communications network that coordinates the process. 2 At times, the demand on the PICU staff and facilities is so great that it cannot accept additional patients without risking the health of the new patient or those already in the PICU. This is never the case with the Pediatrics Emergency Room. When the PICU is in a non-accepting condition it notifies the MIEMS System that it is to be placed on “fly-by” status which means that patients who are to arrive by helicopter to the PICU are directed, at the time of the initial radio contact, to the next comparable unit in the MIEMS System which, in this case, was the Children’s Hospital in Washington, D.C. The helicopter trip from the Davis’ home to Children’s Hospital was approximately eighteen minutes, six minutes more than the trip to Hopkins. Even when the PICU was on fly-by status, it received calls through the MIEMS System communication network.

On occasion, the paramedics at the scene were able to convince the physician in charge of the PICU to accept a ¹⁴² patient even though the PICU was on fly-by status. On other occasions, the physician in charge would not make an exception. . At times, even when it was on fly-by status, the PICU provided consultation, to paramedics on the scene, though the patient was to be flown to another hospital. The Davises were not informed of the possibility that the PICU might go on fly-by status and, as a result, refuse to accept Bobby when transported by helicopter.

In the early morning hours of March 2, 1983, three year old Bobby began seizing at home. Mrs. Davis called the paramedics who arrived at the Davis’ home, loaded Bobby, accompanied by his father, into the ambulance and drove to the rendezvous with the waiting helicopter. Paramedic Calvin Cavey, the ambulance driver, called Hopkins to advise that Bobby was seizing and that he was to be flown by helicopter to the PICU. The call was patched through to both the PICU and the emergency room. 3 Dr. Morrow, a resident physician in the PICU, responded that the PICU was on fly-by status and therefore Bobby should be taken to NACH, the nearest hospital.

This was refused. Dr. Morrow then said Bobby should be flown to Children’s Hospital in Washington, D.C. 4 This procedure was also refused. Mr. Cavey read the February 9, 1981 letter to Dr. Morrow. At about the same time, Trooper Deal, the medical observer on the helicopter, entered the conversation and demanded admission to Hopkins for Bobby.

Dr. Nancy Setzer, Dr. Morrow’s supervisor, was contacted by Dr. Morrow and advised of the situation. Dr. Setzer authorized Bobby’s admission to the PICU. Dr. Morrow relayed this to Mr. Cavey. The admission discussion lasted between ten and fourteen minutes.

Bobby, accompanied by his father, was then loaded into the helicopter and flown to Hopkins. The flight took thirteen minutes. During the flight, a ¹⁴³ patient was moved out of the PICU to make room for Bobby. Bobby required ventilation during transportation from his house to Hopkins.

He was ventilated in the ambulance with an “airway” which held down his tongue to ensure good air passage into his lungs. A pediatric airbag with pure oxygen was then placed over Bobby’s mouth and squeezed to force oxygen into his lungs. Bobby was being ventilated in this manner from the time he was loaded in the ambulance until he was loaded in the helicopter, after the discussion between Mr. Cavey and Dr. Morrow. During the helicopter flight, Bobby retained the “airway” in his mouth, but Trooper Deal was not able to use the pediatric airbag to force oxygen into Bobby’s lungs.

Instead, Trooper Deal used a nonrebreather mask, a soft, clear plastic mask connected by a tube to a cylinder of oxygen which fits over the patient’s mouth and nose. Bobby was landed on the roof of the Children’s Center at Hopkins and immediately treated. Bobby suffered severe brain damage due to the events of March 2, 1983. 3. Medical Records In October 1983, Mr. Davis and his counsel went to Hopkins to review and copy Bobby’s records and were told that volumes containing records of admissions from late 1980 through 1982 were missing.

All other records were produced. Lisa Cowait, the Senior Claims Coordinator for Hopkins, as well as other Hopkins personnel, periodically searched for the records in the various clinics and in-patient areas where Bobby was treated. In February 1986, a Request for Production of Documents, 5 filed by Davises’ counsel, demanded all medical records for Bobby. The records for 1981 were produced in April 1987.

In August 1989, counsel for the Davises noted the deposition of Lottie Cole, head of the Medical Records Department of Hopkins, to determine the whereabouts of the missing 1980 and 1982 records. On the business day before the deposition, Ms. ¹⁴⁴ Cowait asked the Medical Records Department to search for the missing records. Forty-five minutes later the records were located. The records were produced the following business day, less than one month before trial.

Ms. Co wait testified that no one at Hopkins ever withheld any medical records from appellants and that both counsel received the same records at the same time. DISCUSSION A motion for judgment, Md.Rule 2-519, 6 must be denied and the case must be submitted to the jury if there is any admissible evidence, however slight, legally sufficient as tending to prove negligence or other right of the plaintiff to recover. Beahm v. Shortall, 279 Md. 321, 341-2 , 368 A.2d 1005 (1977); Montgomery Ward & Co. v. McFarland, 21 Md.App. 501, 513 , 319 A.2d 824 (1974). Once the court determines that there is sufficient evidence to generate a jury question, it is for the jury to assess and evaluate the weight to be assigned to the evidence.

Neither the trial court nor this Court is permitted to substitute its evaluation for that of the jury. Thodos v. Bland, 75 Md.App. 700, 713-14 , 542 A.2d 1307 (1988) (citations omitted). Thus, only where it is manifest to the court upon the uncontradicted evidence that there is no rational basis upon which a verdict can be for the plaintiff, may the court grant a motion for judgment in favor of the defendant. Montgomery Ward, 21 Md.App. at 513-14 , 319 A.2d 824 . 1.

Negligence Three basic elements are necessary to state a cause of action in negligence. First, the defendant must be under ¹⁴⁵ a duty to protect the plaintiff from injury. Second, the defendant must fail to discharge that duty. Third, the plaintiff must suffer actual loss or injury proximately resulting from that failure.

Lamb v. Hopkins, 303 Md. 236, 241 , 492 A.2d 1297 (1985) (citations omitted). Because medical malpractice is a type of negligence, the burden of proof, as in any case founded upon negligent conduct, rests with the plaintiff. See Shilkret v. Annapolis Emergency Hospital, 276 Md. 187, 190 , 349 A.2d 245 (1975); Suburban Hospital Ass’n v. Mewhinney, 230 Md. 480, 484-5 , 187 A.2d 671 (1963). The existence and scope of a legal duty in a medical malpractice action is a question of law for the courts.

Farwell v. Un, 902 F.2d 282 , 288 (4th Cir.1990) (determination of a doctor’s duty to a patient under Maryland and Delaware law) citing W. Keeton, Prosser & Keaton on Torts § 37, at 236 (5th ed. 1984) (hereinafter Prosser ). 7 Prosser states that this determination is made by reference to the body of statutes, rules, principles and precedents which make up the law. § 37, at 236. “ ‘[D]uty’ is ... an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” Jacques v. First Nat’l Bank, 307 Md. 527, 533 , 515 A.2d 756 (1986) quoting Prosser § 53, at 357. This is in accord with Maryland case law on negligence generally. See, e.g., Jacques, 307 Md. at 540-45 , 515 A.2d 756 . (bank which agreed to process a loan application owed the customer a duty of reasonable care in processing and determination of that application); Lamb, 303 Md. 236 , 492 A.2d 1297 (a probation officer does not owe a duty to individuals injured by the negligence of a probationer); Scott v. Watson, 278 Md. 160, 167 , 359 A.2d 548 (1976) (“Maryland law does not impose upon the landlord of an urban apartment ¹⁴⁶ complex a special duty to tenants to protect them from the criminal acts of third parties committed in common areas within the landlord’s control ... [but only] to exercise reasonable care for the tenant’s safety____”).

To determine whether a tort duty should be recognized in a particular context, the Court of Appeals in Jacques provided this guidance: [T]wo major considerations are: the nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties. Where the failure to exercise due care creates a risk of economic loss only, courts have generally required an intimate nexus between the parties as a condition to the imposition • of tort liability. This intimate nexus is satisfied by contractual privity or its equivalent. By contrast, where the risk created is one of personal injury, no such direct relationship need be shown, and the principal determinant of duty becomes foreseeability____ [In other words,] an inverse correlation exists between the nature of the risk on one hand, and the relationship of the parties on the other.

As the magnitude of the risk increases, the requirement of privity is relaxed — thus justifying the imposition of a duty in favor of a large class of persons where the risk is of death or personal injury. Conversely, as the magnitude of the risk decreases, a closer relationship between the parties must be shown to support a tort duty. 307 Md. at 534-5, 537 , 515 A.2d 756 (citations and footnotes omitted). Whether a duty exists in a medical malpractice action is a separate question from the general standard of conduct or the specific conduct necessary to meet the general standard. The general standard of conduct is again a matter of law to be decided by the court.

Prosser § 37, at 236-7. Once a duty is found, the duty requires that the defendant’s general conduct conform at least to that of a reasonable person under the same or similar circumstances. Id. Applied to hospitals, the general standard of conduct is ¹⁴⁷ 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 the relevant considerations, are to be taken into account. Shilkret, 276 Md. at 202 , 349 A.2d 245 . As it is impossible to prescribe definite rules in advance for the specific conduct which is reasonable in every circumstance, the determination in doubtful cases is for the jury. Prosser § 37, at 237-8; Shilkret, 276 Md. at 203 , 349 A.2d 245 ; Johns Hopkins Hospital v. Genda, 255 Md. 616, 620 , 258 A.2d 595 (1969).

At common law, “a private hospital is not under a ... duty to serve everyone who applies for treatment____ In the absence of statute, it may accept some applicants and reject others.” Levin v. Sinai Hospital of Baltimore, 186 Md. 174, 180 , 46 A.2d 298 (1945). This was founded on the principle that there is generally no