Dehn v. Edgecombe

RAKER, J. The principal question before this Court is whether Maryland recognizes an independent cause of action in a patient’s wife against a doctor who acted negligently while treating her husband but who had no relationship or direct interaction with the wife. We shall hold that petitioners do not have an independent cause of action against respondents based upon respondents’ alleged medical malpractice. I. On May 11, 2000, Corinne Dehn and James Dehn filed in the Circuit Court for Prince George’s County a medical malpractice action against Glenn Edgecombe, M.D., et al, alleging that Dr. Edgecombe was negligent in providing post-operative care following Mr. Dehn’s vasectomy. The case proceeded to trial before a jury.

The court dismissed all of Mrs. Dehn’s claims at the close of the plaintiffs’ case. The jury returned a verdict in favor of Mr. Dehn on the issue of negligence, but in favor of Dr. Edgecombe on the issue of contributory negligence. The court entered judgment in favor of Dr. Edgecombe and the Dehns noted a timely appeal to the Court of Special Appeals. That court affirmed, 152 Md.App. 657 , 834 A.2d 146 (2003), and we granted the Dehns’s Petition for Writ of Certiorari. 379 Md. 224 , 841 A.2d 339 (2004). ⁶¹¹ A. Factual Background We recount the facts as set out in the opinion of the Court of Special Appeals. “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 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. Ma-zella. 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 ⁶¹² 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 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, ⁶¹³ 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 18 ejaculations. At that point it was almost nine months past the point where this would have routinely been done. T 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 “I 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. Edge-combe and Mr. Dehn as to the vasectomy and the postoperative 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 ⁶¹⁴ 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, 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.” 152 Md.App. at 663-67 , 834 A.2d at 149-151 . B. The Trial Prior to trial, Dr. Edgecombe moved in limine, seeking to exclude any reference to Mr. Dehn’s pre-existing medical condition as it related to his reasons for seeking a vasectomy. The defendants also sought to exclude any reference to any purported conversation by Dr. Edgecombe suggesting that Mrs. Dehn had been impregnated by a man other than her husband. Counsel argued that the probative value of this ⁶¹⁵ information was outweighed by the prejudicial effect it would have on the jury.

In addition, defendants argued that there was no medical testimony that Mr. Dehn’s life would be shortened for any reason. The trial court granted the motion, ruling that the decrease in life expectancy and related matters were not relevant, and more prejudicial than probative. Trial commenced before a jury in July 2002 in the Circuit Court for Prince George’s County. Petitioners’ theory was that “the negligence in failing to provide a referral for semen analysis is the fault of Dr. Edgecombe, and the cost of raising this child should be borne by the party who was negligent.” At the close of petitioners’ case, Dr. Edgecombe moved for judgment in his favor.

As we have indicated, the Circuit Court granted the motion with respect to Mrs. Dehn, dismissing all her claims, but allowed Mr. Dehn’s claims to proceed. The jury found that: (a) Dr. Edgecombe was negligent by his failure to provide adequate post-operative care to Mr. Dehn following his vasectomy, and (b) Mr. Dehn was contributorily negligent by his failure to follow the instructions of Dr. Mazella who performed the vasectomy. Based on the jury finding of contributory negligence, the court entered judgment on behalf of Dr. Edgecombe. Before the Court of Special Appeals, the Dehns argued that the Circuit Court’s dismissal of Mrs. Dehn’s claims against Dr. Edgecombe was legal error.

The court disagreed with the Dehns and held that because Mrs. Dehn had never been a patient of Dr. Edgecombe, he did not owe her the duty of care arising out of a doctor-patient relationship. Thus, she could assert no cognizable claim of negligence against the doctor. The court rejected the argument that, even in the absence of a doctor-patient relationship, Dr. Edgecombe owed her a duty of care by virtue of her position as the spouse of Mr. Dehn. The court explained that any claims for damages Mrs. Dehn might have had in the absence of a doctor-patient relationship were “derivative” of her husband’s claims, meaning that she could not raise an independent cause of action against the doctor, and that any viable claim she might have had was dependent on the successful recovery by Mr. Dehn on his “primary” ⁶¹⁶ negligence action.

As it happens, Mr. Dehn’s claim of negligence was not viable because the jury found him to be contributorily negligent, which, in Maryland, is a complete bar to any recovery by a plaintiff. See Harrison v. Montgomery County Bd. of Educ., 295 Md. 442 , 456 A.2d 894 (1983). Under the holding of the Court of Special Appeals, Mrs. Dehn, like her husband, could recover no damages from Dr. Edge-combe. The Dehns petitioned this Court for a Writ of Certiorari, presenting the following questions for our consideration: “I. In negligent sterilization cases should the doctor-patient relationship be recognized to permit a duty between the doctor and patient’s spouse when as a result of the negligent sterilization, the obvious and natural consequence of the malpractice would be that the wife will become pregnant and give birth?

If so, would this cause of action be independent or derivative of the patient? “II. Whether the trial court was properly able to exercise its discretion in forbidding the introduction of extremely probative and critical evidence related to the patient’s genetic reason for the sterilization, when the trial judge: (1) failed to properly consider the use of this evidence as it pertains to the case of Jones v. Malinowski, [ 299 Md. 257 , 473 A.2d 429 (1984)], and (2) misconstrued the proposition that the evidence was being offered for while intruding on the jury’s province of determining the credibility of witnesses? “HI. Whether the trial judge erred by ruling that Mr. Dehn could not recover any nonpecuniary damages even though such damages are normally recoverable in negligence actions in Maryland?” II. Petitioners argue in this Court that Mrs. Dehn should be permitted to bring an independent cause of action despite her lack of a doctor-patient relationship with Dr. Edgecombe.

Petitioners rely primarily on the seminal case of Jones v. ⁶¹⁷ Malinowski, 299 Md. 257 , 473 A.2d 429 (1984), in which this Court held that the parents who conceived an unwanted but healthy child because of a doctor’s negligently performed sterilization on the wife were permitted to receive damages for child-rearing costs, offset by the benefits the parents derived from the child’s aid, society, and comfort. Id. at 270 , 473 A.2d at 435 . Although the Court’s holding in that case did not speak to the precise issue here, petitioners base almost their entire argument on language in Jones , which refers to the recipients of the damages of child-rearing costs as the “parents,” not as the single parent who underwent the negligent sterilization. They reason that because the Jones Court recognized that both parents suffer harm and costs resulting from that surgery, it is implicit in the holding that each parent has his or her own independent negligence action against the doctor.

Petitioners also contend that an independent cause of action by the wife accrues because it is eminently foreseeable that a doctor’s post-operative advice regarding a vasectomy to a husband could have serious effects on his wife. Respondents’ primary argument is that there was no error, and if there was, it was harmless. Respondents maintain that any error alleged by petitioners is not prejudicial because the jury found that Dr. Edgecombe was negligent. Petitioners cannot complain because the relevant part of the verdict was in their favor.

On the substantive issue, respondents counter that the traditional rule in Maryland is that there can be no cause of action in negligence without there first being a duty on the part of the alleged tortfeasor. A duty, in turn, requires that there be a relationship between Dr. Edgecombe and Mrs. Dehn. No such relationship exists, and therefore there was no duty on the part of Dr. Edgecombe. Respondents disagree with the contention that the pregnancy effected by the doctor’s negligent acts was foreseeable: Dr. Edgecombe was not the surgeon who performed the vasectomy, nor were his conversations with Mr. Dehn in the context of separate postoperative care for the vasectomy but rather for an entirely unrelated medical matter.

Thus, those conversations, after which Mr. Dehn decided to forgo the semen analyses altogeth ⁶¹⁸ er, could not reasonably be deemed the foreseeable causes of the pregnancy of a person whom the doctor had never met.

III

The cause of action Mrs. Dehn wishes to bring against Dr. Edgecombe sounds in negligence. 1 Medical malpractice “is predicated upon the failure to exercise requisite medical skill and, being tortious in nature, general rules of negligence usually apply in determining liability.” Benson v. Mays, 245 Md. 632, 636 , 227 A.2d 220, 223 (1967). This understanding is not changed by the fact that the specific conduct constituting the medical malpractice at issue is negligent sterilization. As we explained in Jones v. Malinowski, negligence in the performance of a sterilization procedure is “a cause of action in tort based upon traditional medical malpractice principles.” 299 Md. at 263 , 473 A.2d at 432 . We said that these “fundamental principles” of a tort action for negligence are “manifestly applicable to a medical malpractice action in Maryland involving ... a suit by parents for money ⁶¹⁹ damages from a physician for the negligent performance of a sterilization operation.” Id. at 269 , 473 A.2d at 435 .

By treating a negligent sterilization case like any other negligence tort, we concluded that damages flowing from negligent sterilization should be assessed using traditional negligence principles. We held in Jones that there could be compensable injury to parents when a child is born as a result of medical negligence, and that the measure of damages included “child rearing costs to the age of the child’s majority, offset by the benefits derived by the parents from the child’s aid, society and comfort.” Id. at 270 , 473 A.2d at 435 . Thus, Mrs. Dehn’s claim of negligent sterilization, if there is one, is to be treated like any other medical malpractice tort, that is, as a traditional negligence claim. Cf.

Reed v. Campagnolo, 332 Md. 226, 232 , 630 A.2d 1145, 1148 (1993) (applying same “traditional medical malpractice principles for negligence” as in Jones to an action alleging so-called “wrongful birth,” which alleges that the negligence of a physician deprived his patient of the opportunity to terminate a pregnancy that would likely result in a child bom with severe birth defects). In order to state a claim in negligence, the plaintiff must allege and prove facts demonstrating “(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.” Horridge v. St. Mary’s County Dept. of Social Services, 382 Md. 170, 182 , 854 A.2d 1232, 1238 (2004); Green v. North Arundel Hospital, 366 Md. 597, 607 , 785 A.2d 361, 367 (2001). Our focus is on the first element, a legally cognizable duty owed by Dr. Edgecombe to Mrs. Dehn, for without a duty, no action in negligence will lie. Duty, in negligence, is “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Prosser and Keeton on the Law of Torts, § 53 at 356 (5th ed.1984).

It is based upon a relationship between the actor and the injured person. The ⁶²⁰ issue of duty is one for the court as a matter of law. See Hemmings v. Pelham Wood, 375 Md. 522, 536 , 826 A.2d 443, 451 (2003); Valentine v. On Target, 353 Md. 544, 551 , 727 A.2d 947, 950 (1999). It is the general rule that recovery for malpractice against a physician is allowed only where there is a relationship between the doctor and patient.

See, e.g., Eid v. Duke, 373 Md. 2, 16 , 816 A.2d 844, 852 (2003); Dingle v. Belin, 358 Md. 354, 367 , 749 A.2d 157, 164 (2000); Hoover v. Williamson, 236 Md. 250, 253 , 203 A.2d 861, 863 (1964); Lemon v. Stewart, 111 Md.App. 511, 521 , 682 A.2d 1177, 1181 (1996). See also Rigelhaupt, What Constitutes Physician-Patient Relationship for Malpractice Purposes, 17 A.L.R.4th 132 (1982). This relationship may be established by contract, express or implied, although creation of the relationship does not require the formalities of a contract, and the fact that a physician does not deal directly with a patient does not necessarily preclude the existence of a physician-patient relationship. What is important, however, is that the relationship is a consensual one, and when no prior relationship exists, the physician must take some action to treat the person before the physician-patient relationship can be established.

There are exceptions to this rule. For example, when a physician undertakes to act gratuitously or in an emergency situation, a duty may be created, see Hoover v. Williamson, 236 Md. 250, 253 , 203 A.2d 861, 863 (1964), but such exceptions are rare, particularly when the doctor never provided any treatment to the person alleging negligence. In Homer v. Long, 90 Md.App. 1 , 599 A.2d 1193 (1992), a husband sued his wife’s psychiatrist for damages resulting from the psychiatrist’s affair with his wife, even though the husband was never a patient of the psychiatrist. The husband had retained the psychiatrist to treat his wife and to provide “appropriate counseling and psychiatric treatment” for her.

He gave to the doctor “sensitive and confidential information” to aid in the treatment. The psychiatrist responded by using that information to commence a sexual relationship with the wife, which ⁶²¹ led to the end of her marriage. The court held that the husband’s negligence claim suffered from fatal deficiencies— primarily a failure to allege a duty that the law is prepared to recognize. Id, at 10, 599 A.2d at 1197 .

Judge Wilner, then Chief Judge of the Court of Special Appeals, and currently a judge on this