Dehn v. Edgecombe

⁶⁶³ MOYLAN, J. The appellants, James and Corrinne Dehn, husband and wife, brought a four-count complaint against the appellee, Dr. Glenn Edgecombe, in the Circuit Court for Prince George’s County. At the end of the plaintiffs’ case, judgment was granted against the appellants on three of those four counts, and no issue as to them is raised on this appeal. The only count that concerns us is the one that charged Dr. Edgecombe with negligence in failing to provide proper postoperative care to Mr. Dehn following a vasectomy. At the end of the plaintiffs’ case, Judge Michelle D. Hotten granted judgment against Mrs. Dehn on that count.

The trial went forward on Mr. Dehn’s claim of negligence against Dr. Edge-combe. The ultimate two-pronged jury verdict was 1) that Dr. Edgecombe had negligently breached the applicable standard of care and his negligence was the proximate cause of Mr. Dehn’s damages, but 2) that Mr. Dehn had himself been contributorily negligent. With respect to the verdict of contributory negligence, the appellants do not claim that the evidence was not legally sufficient for Judge Hotten to have submitted the issue to the jury, nor do they claim any error in jury instructions on that issue. On appeal, the appellants raise the three issues: 1. that judgment was erroneously granted against Mrs. Dehn on the count charging negligence; 2. that three erroneous evidentiary rulings denied the jury probative evidence on the issues of 1) primary negligence, 2) contributory negligence and 3) the calculation of damages; and 3. that Judge Hotten erroneously limited the proof of damages to direct medical expenses and child-rearing costs.

Factual Background At some time during 1994, when Mrs. Dehn was pregnant with the couple’s second child, the Dehns decided not to have any more children. To that end, they decided that Mr. Dehn should undergo a vasectomy. Mr. Dehn discussed his desire ⁶⁶⁴ with Dr. Edgecombe, his family practice doctor. Because Dr. Edgecombe was not qualified to perform a vasectomy, he referred Mr. Dehn to a surgeon, Dr. Samuel F. Mazella, who ultimately performed the vasectomy on October 24, 1995.

There is no issue with respect to the referral to Dr. Mazella or with respect to the vasectomy itself. Nor is there any issue with respect to the post-operative care, including post-operative advice, rendered by Dr. Mazella. Dr. Mazella expressly warned Mr. Dehn that the procedure might not be effective and that Mr. Dehn might still be able to father a child. To best insure against an unwanted pregnancy, Dr. Mazella instructed Mr. Dehn 1) that he was not to have unprotected sexual relations for six months and 2) that, during that time, he was to have at least twenty ejaculations.

Dr. Mazella further provided Mr. Dehn with three prescriptions for semen analyses. He instructed Mr. Dehn to have the first semen analysis done after twenty ejaculations, and then to have the remaining two semen analyses completed at some time during the remainder of the initial six month period. The results of those tests were to be sent to Dr. Mazella’s office. Only if and when the third analysis proved negative for sperm was the vasectomy to be considered to be a successful birth control measure.

Dr. Mazella further expressly instructed Mr. Dehn to contact him, Dr. Mazella, if he had any concerns or problems during the post-operative period. The evidence abundantly showed that Mr. Dehn negligently failed to follow Dr. Mazella’s instructions. He never used the three prescriptions for semen analysis, because, he claimed, they were “vague” and they did not give him specific directions as to a laboratory, a date, or a location for the sperm count test. Mr. Dehn acknowledged that one reason he did not follow instructions was because he speculated that his health plan would probably not pay for the tests.

Obviously, no sperm test results were ever sent by Mr. Dehn to Dr. Mazella’s office. Mr. Dehn testified that he was not aware that three semen tests were required. At one point, he stated that he thought ⁶⁶⁵ the tests were merely a “follow-up” after the passage of six months and twenty ejaculations, without pointing out the significance of that conclusion. Mr. Dehn acknowledged that, notwithstanding the instructions to contact Dr. Mazella about any questions or concerns, he never again contacted Dr. Mazella.

Mr. and Mrs. Dehn engaged in unprotected sexual relations in December of 1996, at which time she conceived the child whose unwanted birth is the object of the present suit. All of the controversy swirls about the nature of one or more conversations between Mr. Dehn and Dr. Edgecombe during the period between the performance of the vasectomy in October of 1995 and the onset of Mrs. Dehn’s pregnancy in December of 1996. During that time, Mr. Dehn saw Dr. Edgecombe, his primary care provider, on at least several occasions for medical matters unrelated to the vasectomy. Dr. Edgecombe testified that it was not until July 8, 1996, eight months after the vasectomy, that he even learned, in the course of a visit for an unrelated matter, that the vasectomy had, indeed, been performed on Mr. Dehn.

He stated that it was standard practice for only the specialist surgeon who performed the operation to handle all aspects of post-operative care, including the monitoring of semen analyses. He testified that on a single occasion, the visit of July 8, 1996, Mr. Dehn raised with him the subject of a semen analysis and that the subject came up in a casual and offhand manner as they were leaving the office. “I had seen Mr. Dehn for a medically related topic. We were done. We were leaving the room and he said, ‘Oh, by the way, Doctor, I need a semen analysis.’ [It] was highly unusual.

No patient has ever asked me that before. Again, we were not in the room, we were in the hall leaving. The patient said to me, ‘Dr. Mazella never asked or wanted to get a semen analysis.’ That was unusual, and I told Mr. Dehn that I[had] had a vasectomy in the past and my urologist had wanted to get a semen analysis at three months after the vasectomy or after 13 ejaculations. At ⁶⁶⁶ that point it was almost nine months past the point where this would have routinely been done.

I told Mr. Dehn also [that] it takes at least 13 ejaculations for the vas deferens, the sperm duct, to be emptied after a successful vasectomy. He told me that he had over twenty protected ejaculations. I also told Mr. Dehn in the hall that I had not heard of a vasectomy failing. Based on what he told me, that it was now six months after the fact when they are routinely done, and that he had twenty protected ejaculations, I’d assume that the surgeon had done the procedure correctly.

He also seemed to indicate that the surgeon had discharged him a long time previously and, based on that, I said T guess you don’t need to have a semen analysis. It ■ should have been done at three months.’ ” Dr. Edgecombe further testified that if Mr. Dehn had ever told him that he had not had a single semen analysis test and had not been discharged by Dr. Mazella, he would have sent Mr. Dehn back to Dr. Mazella. Dr. Edgecombe presented the expert opinion of Dr. Boyle, a family practitioner, that because of the referral of Mr. Dehn to Dr. Mazella, 1) there was no doctor-patient relationship between Dr. Edgecombe and Mr. Dehn as to the vasectomy and the post-operative care, 2) the patient had the responsibility to follow the instructions of the specialist, and 3) the referring physician could assume that such instructions were followed. Mr. Dehn, by way of stark contrast, testified that he had expressly asked Dr. Edgecombe for “a referral for a semen analysis” on three separate occasions.

The first was on May 24, 1996, when Mr. Dehn told Dr. Edgecombe that six months had passed since his vasectomy, that he had had twenty ejaculations, and that he needed a semen analysis to make certain that he was sterile. Dr. Edgecombe, however, reassured Mr. Dehn that there was no need for a semen analysis and that there was no risk of impregnating his wife. Mr. Dehn informed his wife about what Dr. Edgecombe had said, ⁶⁶⁷ but she still wanted to wait for a semen analysis before engaging in unprotected sexual relations. Accordingly, Mr. Dehn again raised the subject with Dr. Edgecombe on the occasion of his next medical appointment on July 9.

He again asked Dr. Edgecombe for a referral for a semen analysis and was again told that there was no need for one. Mrs. Dehn, however, still insisted on waiting for a semen analysis before having unprotected sexual relations. Mr. Dehn, according to his testimony, brought the subject up with Dr. Edgecombe on yet a third occasion on November 13, 1996. According to his testimony, Dr. Edgecombe replied: “Jimmy, personally I had a vasectomy seven years ago.

I didn’t have a sperm count done. Me and my wife [sic] have practiced regular relations. You’re not going to get your wife pregnant. Will you go home, [and] tell your wife I personally assure her you cannot father any children.” • Dr. Edgecombe, on the other hand, denied that he had even seen Mr. Dehn on November 13, for any reason.

The Evidentiary Issues It behooves us to consider first the appellants’ contention alleging three evidentiary errors. It is the only issue bearing, even partially, on the propriety of the verdict of contributory negligence. If that verdict stands unreversed, the appellants’ other contentions become moot. Even with respect to the evidentiary issues, moreover, we may narrow the focus of the contention yet further.

The appellants allege that Judge Hotten erroneously'rejected evidence that would have been relevant 1) in proving Dr. Edge-combe’s primary negligence, 2) in disproving Mr. Dehn’s contributory negligence, and 3) in calculating damages. As the appellants characterize the tripartite impact of the evidentiary rulings: The trial court excluded three categories of evidence that Mr. Dehn argued was essential to the jury’s determination of [1] the doctor’s negligence, [2] the reasonableness of Mr. Dehn’s conduct, and [3] the calculation of damages. ⁶⁶⁸ Our concern is exclusively with the possible impact of the challenged evidence on the jury’s consideration of contributory negligence. Even the erroneous rejection of the evidence could not have created ultimate prejudice on the first sub-issue for, even without the benefit of the disputed evidence, the jury found in Mr. Dehn’s favor on the question of Dr. Edgecombe’s primary negligence. Mr. Dehn enjoyed total victory on that issue.

As to it, there is no way he could have done better than he did. Even the erroneous rejection of the disputed evidence would have worked no prejudice on the issue of damages, moreover, for if the contributory negligence verdict stands, any question as to damages is self-evidently moot. If the appellants are entitled to no damages at all, it is immaterial what the jury might have considered had it been required to calculate damages. That eventuality never came to pass and the hypothe-cized error has never made it out of the subjunctive mood.

As we now approach our consideration of the specific evidentiary sub-issues, it also behooves us to remember that evidentiary rulings, particularly those involving relevance, are entrusted to the wide discretion of the trial judge. Appellate courts are highly deferential to rulings of the trial court in that regard and will not presume to second-guess such rulings absent a clear abuse of the trial judge’s discretion. Smallwood v. Bradford, 352 Md. 8, 27 , 720 A.2d 586 (1998); Merzbacher v. State, 346 Md. 391, 404 , 697 A.2d 432 (1997); North River Ins. Co. v. Mayor and City Council of Baltimore, 343 Md. 34, 89-90 , 680 A.2d 480 (1996); Armstead v. State, 342 Md. 38, 66 , 673 A.2d 221 (1996).

A. The Plaintiffs’ Reasons for Seeking the Vasectomy At the outset of the trial, Dr. Edgecombe moved in limine to preclude any reference to Mr. Dehn’s preexisting medical condition as his reason for seeking a vasectomy. Judge Hotten granted the motion for two reasons: 1) that the evidence was not relevant to prove any issue in the case; and 2) that, even if arguably relevant, the likely prejudicial impact ⁶⁶⁹ of the evidence outweighed its probative value. We hold that she was right for both reasons. Reversing the order of our consideration, we agree that the prejudicial impact could have been substantial.

Without supportive medical evidence but through the testimony of Mr. Dehn alone, the plaintiffs sought to inject into the case 1) that Mr. Dehn suffered from peripheral artery disease, 2) that he would likely suffer the amputation of both legs by the time he was in his mid-forties, 3) that he would die before he was fifty, and 4) that a widowed Mrs. Dehn would be economically unable to provide for a third child. At argument on the motion, the attorney for the plaintiffs summarized the things he sought to prove. Dehn has been diagnosed with peripheral artery disease. He’s under the impression and was under the impression at the time he sought the sterilization, as was his wife, that he mil lose the circulation into his lower limbs and eventually by his mid 40’s, they will be amputated.

He had undergone a surgery relevant to the peripheral artery disease. And that shortly before the sterilization, and it is his belief, his life expectancy will be around 50. Given those facts and his wife’s limited ability to earn money in this country, they decided that two children was enough. They didn’t want to leave the family having to support a third child, that he sought the sterilization.

(Emphasis supplied). We cannot fault Judge Hotten’s conclusion that that combination of grim circumstances would have engendered massive jury sympathy for the plaintiffs of a type that might readily override mere legal reasons against a verdict in their favor. If ever sympathy had the power to move jurors to overlook the law, this was such a case. It is exactly the sort of thing the balancing test seeks to avoid.

Maryland Rule 5-403. In turning to Judge Hotten’s initial reason for her ruling, that based on the lack of relevance, we now have the luxury of assessing relevance exclusively in terms of its probative value on the issue of Mr. Dehn’s contributory negligence. ⁶⁷⁰ Even now at the appellate stage, however, the plaintiffs’ primary argument for evidentiary error on this sub-issue remains one based on Jones v. Malinowski, 299 Md. 257 , 473 A.2d 429 (1984), and its arguable holding that the reason for seeking a sterilization may be pertinent to the calculation of damages, if and when liability is established. Indeed, in all of the extensive argument before Judge Hotten on the motion in limine, there was no remote mention of contributory negligence as the subject of the evidence’s probative value. The current argument is an afterthought.

The quality of relevance was fully explained by State v. Joynes, 314 Md. 113, 119-20 , 549 A.2d 380 (1988): There are two important components to relevant evidence: materiality and probative value. Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case. The second aspect of relevance is probative value, which is the tendency of evidence to establish the proposition that it is offered to prove. See McCormick on Evidence § 185, at 541 (E. Cleary 3d ed.1984).

Although the relevancy assessment is not susceptible to precise definition, it has been suggested that “the answer must lie in the judge’s own experience, his general knowledge, and his understanding of human conduct and motivation.” See McCormick on Evidence § 185, at 544 (E. Cleary 3d ed.1984). Evidence which is thus not probative of the proposition at which it is directed is deemed “irrelevant.” Dorsey, supra, 276 Md. at 643, 350 A.2d at 669; Wharton’s Criminal Evidence § 151 (13th ed.1972). The trial judge is usually in the best position to evaluate the probative value of the proffered evidence. Where evidence is utterly lacking in probative value, it may be condemned as “remote” or “speculative.” (Emphasis supplied).

In our judgment, the plaintiffs’ attempt to explain a logical relationship between their reason for seeking sterilization and Mr. Dehn’s failure to follow his surgeon’s advice is nonsensical or, in the words of State v. Joynes, “remote” and “specula ⁶⁷¹ tive.” Mr. Dehn was contributorily negligent in that 1) he failed to follow Dr. Mazella’s explicit instructions, 2) he resumed unprotected sexual relations with his wife without satisfying the preconditions set out by Dr. Mazella, and 3) he failed to consult further with Dr. Mazella as to any doubts he may have entertained. That a patient unreasonably delays in obtaining medical testing, examination, or treatment as directed or prescribed by the treating physician is relevant evidence of contributory negligence. Hill v. Wilson, 134 Md.App. 472, 491-94 , 760 A.2d 294 (2000); Smith v. Pearre, 96 Md.App. 376, 394 , 625 A.2d 349 (1993) (“[I]f a patient is told by the doctor to return and fails to, then he may be charged with contributory negligence.”); Chudson v. Ratra, 76 Md.App. 753 , 548 A.2d 172 (1988). The observation by the Court of Appeals in Menish v. Polinger Company, 277 Md. 553, 561 , 356 A.2d 233 (1976), is pertinent here: “[W]hen one who knows and appreciates, or in the exercise of ordinary care should know and appreciate, the existence of danger from which injury might reasonably be anticipated, he must exercise ordinary care to avoid such injury; when by his voluntary acts or omissions he exposes himself to danger of which he has actual or imputed knowledge, he may be guilty of contributory negligence.” See also Moodie v. Santoni, 292 Md. 582, 587 , 441 A.2d 323 (1982).

It does not logically follow that a failure on Mr. Dehn’s part to follow Dr. Mazella’s instructions might have constituted negligence if he had had one reason for seeking the sterilization but might not have constituted negligence if he had had another reason for doing so. There is no eause-and-eflect relationship between 1) Mr. Dehn’s negligently contributing to his wife’s impregnation and 2) whatever reason he may have had for wishing to avoid such a pregnancy. Whether the vasectomy was sought for the gravest of reasons, the silliest of reasons, or some reason in between, that original reason had no influence at all on Mr. Dehn’s subsequent negligence. It ⁶⁷² may have affected the consequences of the unwanted pregnancy, but it was irrelevant to the cause of the impregnation.

Indeed, if the duty of care that Mr. Dehn owed to himself to follow his specialist’s instructions were a duty subject to fluctuation (it is not) lest he be deemed contributorily negligent, it would seem to follow that the more compelling the reason for the sterilization, the proportionately higher that duty of care and caution would become and the more strictly and punctiliously Mr. Dehn would be enjoined to follow his surgeon’s medical advice to the very letter. A hypothetical victory by Mr. Dehn on this particular relevance issue, therefore, would have served only to exacerbate the degree of his contributory negligence. There is no way that that would have helped him. B. Dr. Edgecombe’s Routines for Providing Referrals The appellants’ second evidentiary sub-issue is that Judge Hotten erroneously prevented them from developing evidence of Dr. Edgecombe’s routine procedure with respect to referring patients to specialists in the first instance but then continuing to monitor their follow-up care himself.

The single sustaining of a single objection, however, did not lay out the appellant’s grand strategy as sweepingly as they now do in appellate brief. Another interpretation of the objectionable question is that the appellants were attempting an end-run around Judge Hotten’s earlier ruling that they could not bring out evidence of Mr. Dehn’s earlier medical history for peripheral artery disease. In the course of the cross-examination of Dr. Edgecombe, counsel for the appellants began to question the doctor about a visit Mr. Dehn paid him on July 9, 1996. That was eight and one-half months after the vasectomy was performed and two and one-half months after the six-month post-operative period had run.

The July 9, 1996, visit was for a final pre-operative examination for a surgery that was to be performed on Mr. Dehn the next day to increase his blood flow in alleviation of ⁶⁷³ his peripheral artery disease. The fragment of cross-examination in issue was: Q. And this was, as you said, this was a meeting for prior to a surgical procedure; is that correct? A. It was a medical problem that Mr. Dehn had. Q. And this was to be—it was to be a surgery conducted by Dr. Grover the next day; is that correct, sir?

MR. FARLEY: Let me object, Your Honor. At the ensuing bench conference, the appellants’ attorney made his purpose clear. I can tell you exactly where I’m going in the case.

The Defendant says that I have referred him to a surgeon and he’s following up with the surgeon for what the surgeon does. In this case he gets the surgery on July 9 and ten months later he comes back to Dr. Edgecombe for a referral back to the surgeon for follow-up care. That’s the next question. Did he then see you about November for Dr. Grover for a referral for follow-up care.

(Emphasis supplied). Judge Hotten sustained the objection to the line of questioning both on the basis of her earlier ruling and on the ground of lack of relevance. We hold that she was correct in both regards. Her earlier ruling that the prejudicial effect of knowledge of Mr. Dehn’s peripheral artery condition would outweigh any probative value of the evidence was pertinent to this ruling as well.

Our earlier analysis does not need repeating here. This ruling was consistent with the first. Judge Hotten was also correct in ruling that the evidence was not relevant. The fact that Dr. Edgecombe on a single occasion, on July 9, 1996, referred Mr. Dehn to Dr. Grover for an operation to relieve peripheral artery disease and subsequently, “ten months later,” referred Mr. Dehn to Dr. Grover again does not establish that Dr. Edgecombe had, in the interim, been in a doctor-patient relationship with Mr. Dehn with respect to the earlier operation or had assumed responsibility for monitoring Mr. Dehn’s post-operative care.

We have ⁶⁷⁴ no idea what the re-referral to Dr. Grover “ten months later” was for. Was it related to the July 1996 operation and, therefore, post-operative in nature? Was it for the purpose of a possible further operation? Was it for something else?

We simply do not know. A fortiori, it does not establish on Dr. Edgecombe’s part a habit, a pattern, or an invariable routine with respect to all referrals, to all specialists, with respect to all types of medical problems. Maryland Rule 5-406 was not remotely applicable. A vasectomy is generally a one-time procedure.

It is either successful or it is not. A urologist such as Dr. Mazella may, as in this case, assume full responsibility for the patient’s postoperative checking on the operation’s efficacy. Once the operation is determined to have been successful, everything is over and done with. Peripheral artery disease, by contrast, is a continuing and degenerative process.

Even temporary surgical relief would not suggest that, as the disease progresses, future referrals for further surgical relief would not be necessary. Without further belaboring the point, there are too many variables between the two situations to permit them to be treated as interchangeable parts of a single and invariable pattern or routine. For Judge Hotten to have failed to be convinced by the appellants’ flawed logic 1 was hardly a clear abuse of discretion. As we have narrowed our focus to contributory negligence, moreover, we would not find reversible error for yet a further reason.

Even if, purely for the sake of argument, we were to assume that the questionable evidence proved that Dr. Edgecombe had a pattern, following a referral of a patient to a specialist for an operation, to remain in a doctor-patient relationship to monitor the patient’s post-operative care, it would tell us nothing about Mr. Dehn’s contributory negligence. It might, to be sure, help to establish Dr. Edge- ⁶⁷⁵ combe’s primary negligence, but Mr. Dehn, even without the benefit of the evidence of a routine, received a verdict in his favor on that issue. The proffered evidence was that the re-referral by Dr. Edgecombe of Mr. Dehn to Dr. Grover, ten months after the July 9, 1996 operation for peripheral artery relief, alerted Mr. Dehn to the fact that Dr. Edgecombe generally assumed responsibility for Mr. Dehn’s post-operative care following all referrals. The key date is ten months after July of 1996, to wit, May of 1997.

To the extent to which it is suggested that Mr. Dehn’s referral back to Dr. Grover in approximately May of 1997 somehow justified his earlier reliance on Dr. Edge-combe rather than on Dr. Mazella for his post-vasectomy responsibilities, the chronology does not follow. Mr. Dehn’s multiple negligent failures to follow Dr. Mazella’s explicit instructions were, as of May of 1997, long since fait accompli. Mrs. Dehn herself was already six months pregnant. Having been re-referred to Dr. Grover in May of 1997 had no conceivable impact on Mr. Dehn’s contributory negligence throughout 1996.

We are not talking about the existence of a post-vasectomy doctor-patient relationship between Dr. Edgecombe and Mr. Dehn. Mr. Dehn himself testified as to that relationship. The jury necessarily found that there was such a relationship as the basis for its verdict of primary negligence. The jury’s verdict of contributory negligence, on the other hand, held Mr. Dehn accountable for not following Dr. Mazella’s instructions, notwithstanding anything that Dr. Edgecombe may have said.

We are talking, therefore, only about the conceivable impact of the subsequent re-referral to Dr. Grover on Mr. Dehn’s earlier contributorily negligent behavior. Self-evidently, there was none. C. Dr. Edgecombe’s Skepticism About Mr. Dehn’s Paternity The third evidentiary sub-issue is demonstrably a nonstarter. The appellants contend that Judge Hotten errone ⁶⁷⁶ ously excluded evidence that would have shown that even after Mr. Dehn reported to Dr. Edgecombe that his wife was pregnant, 1) Dr. Edgecombe concluded that Mr. Dehn was not the father and communicated that doubt to Mr. Dehn, 2)' Mr. Dehn was persuaded thereby also to doubt his paternity, 3) Mr. Dehn accused his wife of infidelity, and 4) the marital relationship was thereby badly damaged.

Mr. Dehn’s contributory negligence in this case consisted of contributing to his wife’s pregnancy. Whatever happened after she became pregnant cannot relate back so as to influence Mr. Dehn’s pre-pregnancy negligence. His negligent behavior was already locked into history. Whatever may have happened afterward might have affected the calculation of damages, had there been any, but it clearly could have had no effect on contributory negligence.

A later event cannot influence prior events. “The moving finger writes and, having writ, moves on.” Thus, as of this stage of our analysis, one prominent fact has been established that will have dispositive effect on the remaining contentions: AS UNASSAILABLY FOUND BY THE JURY, MR. DEHN, THE PRIMARY PLAINTIFF WAS GUILTY OF CONTRIBUTORY NEGLIGENCE AND WAS THEREBY BARRED FROM RECOVERING FROM DR. ED-GECOMBE, NOTWITHSTANDING DR. EDGE-COMBE’S PRIMARY NEGLIGENCE.

The Dismissal of the Negligence Count As to Mrs. Dehn A. The Claim Was One Charging Negligence Mrs. Dehn contends that Judge Hotten erroneously dismissed her from the claim of negligence against Dr. Edge-combe at the end of the plaintiffs’ case. What we are looking at is Count One of the Complaint. Mr. Dehn’s claim of negligence under that count remained in the case and went to the jury. Our analysis of the propriety of Judge Hotten’s ruling is only concerned with whether Mrs. Dehn had established, prima facie, some independent claim of her own ⁶⁷⁷ against Dr. Edgecombe for the tort of negligence.

We agree with Judge Hotten that she had not. At the outset, it is clear that Maryland, unlike some other states, has not established an independent cause of action for wrongful birth. Wrongful birth cases in Maryland are embraced within the tort of negligence. The subvariety of the tort in this case, successfully prosecuted by Mr. Dehn, was for the negligent failure to give proper post-vasectomy advice to avoid the risk of a failed vasectomy.

That the cause of action under our microscope is for the tort of negligence is made clear by Jones v. Malinowski, 299 Md. 257, 263 , 473 A.2d 429 (1984). That there is a cause of action in tort based upon traditional medical malpractice principles for negligence in the performance of a sterilization procedure is well accepted. See Annot., Tort Liability For Wrongfully Causing One To Be Born, 83 A.L.R.3d 15 (1978). Maryland law is in accord.

See Sard v. Hardy, 281 Md. 432 , 379 A.2d 1014 (1977). (Emphasis supplied). What follows from that premise that the action is one in tort is that, in the absence of some special statutory provision to the contrary, the ordinary rules of tort litigation ■ apply. Once again, Jones v. Malinowski is instructive.

In a toH action for negligence in Maryland the plaintiff may recover “not only for the consequences which have actually and naturally resulted from the tort, but also for those which may certainly or reasonably and probably result therefrom as proximate consequences, but not for consequences which are speculative or conjectural.” Otherwise stated, it is the general rule of damages, applicable in tort actions in Maryland, that a plaintiff may recover only those damages that are affirmatively proved with reasonable certainty to have resulted as the natural, proximate and direct effect of the tortious misconduct. These fundamental principles are manifestly applicable to a medical malpractice action in Maryland involving, as ⁶⁷⁸ here, a suit by parents for money damages from a physician for the negligent performance of a sterilization operation. 299 Md. at 268-69 , 473 A.2d 429 (emphasis supplied). A clear statement that the standard rules and tests of negligence law apply to this relatively new species of negligence is found in Comment, “Judicial Limitations on Damages Recoverable for the Wrongful Birth of a Healthy Infant,” 68 Va. L.Rev. 1311, 1331 (1982). “As the popularity of family planning increases, the number of wrongful birth cases will grow.

Until state legislatures provide statutory guidelines for assessing wrongful birth damages, courts must rely on standard principles of negligence law. Only by treating wrongful birth as a negligently inflicted injury and analyzing it according to the principles accepted in other negligence actions can the court properly compensate the unwilling parents.” (Emphasis supplied). B. To Be Negligent, One Must First Owe a Duty The law, in Maryland as elsewhere, is well settled and long settled that a defendant cannot be guilty of negligence toward a plaintiff unless the defendant first owes some duty to that plaintiff. In Grimes v. Kennedy Krieger, 366 Md. 29, 85 , 782 A.2d 807 (2001), this bedrock principle was squarely stated by Judge Cathell.

In order to establish a claim for negligence under Maryland law, a party must prove four elements: “(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” (Emphasis supplied). Grimes v. Kennedy Krieger, 366 Md. at 85-86 , 782 A.2d 807 , quoted with approval from West Virginia Central Railroad Co. v. Fuller, 96 Md. 652, 666 , 54 A. 669 (1903). ⁶⁷⁹ “[T]here can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another. It is consequently relative and can have no existence a,part from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury....

As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty.” (Emphasis supplied). In Brown v. Dermer, 357 Md. 344, 356 , 744 A.2d 47 (2000), Chief Judge Bell reaffirmed that negligence “necessarily involves the breach of some duty owed by a defendant to the plaintiff.” See also Valentine v. On Target, 353 Md. 544, 550-53 , 727 A.2d 947 (1999); Hartford Insurance Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 148 , 642 A.2d 219 (1994); Ashburn v. Anne Arundel County, 306 Md. 617, 626-27 , 510 A.2d 1078 (1986). C. The Doctor-Patient Relationship as the Primary Source of the Duty Our inquiry, therefore, becomes one of whether Dr. Edgecombe owed a duty of care to Mrs. Dehn. With respect to claims of medical malpractice specifically, the duty of care generally arises out of an actual doctor-patient relationship.

In Dingle v. Belin, 358 Md. 354, 367 , 749 A.2d 157 (2000), Judge Wilner pointed to such a relationship as the sine qua none of a successful recovery. We have long recognized, as have most courts, that, except in those unusual circumstances when a doctor acts gratuitously or in an emergency situation, recovery for malpractice “is allowed only where there is a relationship of doctor and patient as a result of a contract, express or ⁶⁸⁰ implied, that the doctor will treat the patient with proper professional skill and the patient will pay for such treatment, and there has been a breach of professional duty to the patient.” (Emphasis supplied). See also Hoover v. Williamson, 236 Md. 250, 253 , 203 A.2d 861 (1964). In Miller v. Schaefer, 80 Md.App. 60, 73 , 559 A.2d 813 (1989), Judge Karwacki wrote for this Court: Before a physician may be found liable for an act of medical malpractice, it is essential that a patient-physician relationship be in existence at the time the alleged act occurred.

Establishment of this relationship must generally be a result of mutual consent. (Emphasis supplied). In Sterling v. Johns Hopkins Hospital, 145 Md.App. 161, 169 , 802 A.2d 440 (2002), Judge Thieme similarly stated: The duty of care owed to an individual in the medical context is based primarily on the existence of the physician-patient relationship. (Emphasis supplied).

In Lemon v. Stewart, 111 Md.App. 511, 521 , 682 A.2d 1177 (1996), Chief Judge Wilner stated for this Court: The common law duty of care owed by a health care provider to diagnose, evaluate, and treat its patient ordinarily flows only to the patient, not to third parties. Thus, it has often been said that a malpractice action lies only where a health care provider-patient relationship exists and there has been a breach of a professional duty owing to the patient. (Emphasis