Dennis v. Blanchfield

Thompson, J., delivered the opinion of the Court. Helena E. Blanchfield, the appellee, filed a declaration in the Circuit Court for Prince George’s County in which she alleged that she had suffered damages as the result of the medical malpractice of Lewis H. Dennis, M.D., the appellant, and his associate, David J. Haidak, M.D. Following a trial before a jury, a verdict in the amount of $800,000.00 was returned in favor of Mrs. Blanchfield against Dr. Demñs. 1 The verdict was reduced to $400,000.00 through remittitur, and final judgment in that amount was entered on February 13,1980. On March 10,1980, Dr. Dennis moved for a new trial under Md. Rule 625 b alleging that certain evidence had been discovered subsequent to the entry of judgment; the motion was denied. The record shows that Mrs. Blanchfield, a 43 year old divorcee and mother of four, was referred to Dr. Dennis in early 1976, after she had begun to experience blurred vision.

She was hospitalized and various tests were conducted; thereafter, on March 23,1976, Dr. Dennis informed her that she was suffering from multiple myeloma, a form of cancer. Mrs. Blanchfield testified that Dr. Dennis informed her that her cancer was incurable, that she had at most one year to live, and that it would be advisable that she "get her affairs in order.” Because Dr. Dennis advised her that it might prolong her life somewhat, Mrs. Blanchfield underwent chemotherapy from March 23 to April 27, 1976. The chemotherapy was discontinued because of the severity of the side effects. After the discontinuance of the chemotherapy, Mrs. Blanchfield continued to make regular visits to Dr. Dennis’ office for blood tests; the last such visit occurred on August 3, 1976, when it was proposed that Mrs. Blanchfield undergo a liver biopsy so that it could be deter ³²⁷ mined whether the cancer had spread to that organ.

At the urging of her children, Mrs. Blanchfield refused the biopsy and sought admission to the Memorial Sloan-Kettering Cancer Center in New York. Admitted on August 19, 1976, she remained there, undergoing examinations and tests, until September 8,1976, at which time she was released and advised that she was not then, nor had she ever been, suffering from multiple myeloma or any other form of cancer. She filed suit against Drs. Dennis and Haidak on June 23, 1977.

Medical experts, including Dr. Haidak, who was called as an adverse witness by Mrs. Blanchfield, testified that Dr. Dennis, in his diagnosis and treatment of Mrs. Blanchfield, did not conform to acceptable standards of professional care, specifically, that he lacked a sufficient basis for his diagnosis and for instituting chemotherapy and other forms of treatment. Dr. Haidak also testified, over objection, that he terminated his association with Dr. Dennis in September, 1976, one month after Mrs. Blanchfield’s final visit, and that Dr. Dennis’ treatment of Mrs. Blanchfield was one of the factors which contributed to his decision to leave the practice. Evidence was presented which supported Mrs. Blanchfield’s claim that Dr. Dennis’ erroneous diagnosis and treatment had caused her physical and mental suffering. She testified that the chemotherapy caused nausea, vomiting, diarrhea, and weakness.

She further testified that the treatment caused an uncomfortable dryness of the mouth, nose, and eyes, and that she still suffered from this condition at the time of trial. There was medical testimony that, in addition to the physical discomfort, the needless administration of chemotherapy had increased the odds that she would one day develop a true malignancy. Mrs. Blanchfield testified that the diagnosis and treatment had caused her to become extremely nervous and that she had lived for months in a state of severe depression; she stated that she suffered from chronic memory loss, an inability to concentrate, "head swims,” and nightmares. A psychiatrist testified that she suffered from "anxiety depressive ³²⁸ reaction,” that this condition had been caused by the improper diagnosis and treatment, and that she would require some two years of psychotherapy to alleviate her condition.

It was also testified, that during the period when she believed her death to be imminent, she broke off her engagement to be married and was forced by the side effects of the chemotherapy to quit her job as a school bus dispatcher. She testified that she had been unable to regain this job and that, as a result, she had lost wages. I Arbitration Dr. Dennis filed a timely motion raising preliminary objection, on the grounds that Mrs. Blanchfield’s action was barred by her failure to submit her claim to arbitration under the Health Care Malpractice Claims statute ("HCMCS”), Md. Cts. & Jud. Proc.

Code Ann. §§ 3-2A-01, et. seq. Dr. Dennis contends the trial court erred in denying his motion. The HCMCS was enacted as § 1 of Chapter 235, Laws of Maryland, 1976, a comprehensive piece of legislation intended to alleviate a perceived crisis in Maryland in the area of medical malpractice insurance. 2 It makes submission to non-binding arbitration a condition precedent to the filing of an action for damages for medical malpractice, stating: "All claims, suits, and actions, ... by a person against a health care provider for medical injury allegedly suffered by the person in which damages of more than $5,000 are sought are subject to and shall be governed by the provisions of this subtitle. An action or suit of that type may not be brought or pursued in any Court of this State except in accordance with this subtitle.

An action in which damages of $5,000 or less are sought is not subject to the provisions of this subtitle.” Md. Cts. & Jud. Proc. Code Ann. § 3-2A-02. ³²⁹ See, Bishop v. Holy Cross Hospital, 44 Md. App. 688 , 410 A.2d 630 (1980). Section 3-2A-09 declares that the HCMCS "shall be deemed procedural in nature.” Section 2 of Chapter 235 added § 482A to the Insurance Code, art. 48A; it requires the inclusion of certain provisions in insurance policies issued to health care providers.

Chapter 235, § 3 amended Md. Cts. & Jud. Proc. Code Ann. § 5-109, which sets forth the statute of limitations in actions against health care providers. Section 4 repealed all laws inconsistent with the Act, while § 5, the enacting clause for Chapter 235, provided "[t]hat this act shall take effect July 1, 1976, and shall apply only to medical injuries occurring on and after that date.” Dr. Dennis’ first argument is that HCMCS was intended by the legislature to apply to all malpractice actions pending on July 1, 1976, the effective date of the statute, or pursued thereafter, regardless of when the medical injury occurred.

He reasons that Chapter 235, § 5, which we have set forth above, was intended to limit only the application of the "substantive” sections of the Act, §§ 2 and 3, and not the application of § 1, the HCMCS, and that, as the HCMCS is "procedural,” it must be given retroactive as well as prospective effect. He would have us conclude that Mrs. Blanchfield’s action in the Circuit Court, filed on June 23, 1977, was barred by the HCMCS, as an action "brought or pursued” after the effective date of the statute, regardless of when Mrs. Blanchfield’s claimed medical injuries occurred. Alternatively, Dr. Dennis argues that, assuming that the application of the HCMCS is limited by § 5, Mrs. Blanchfield was nevertheless required to submit her claim to arbitration because that claim was for injuries which occurred prior to, on, and subsequent to the effective date of the Act. Drawing an analogy to the "continuing course of treatment” rule employed in interpreting statutes of limitations in malpractice cases, 3 he argues that, as Mrs. ³³⁰ Blanchfield continued to be under his care and treatment until August 3, 1976, at least some of the medical injuries alleged occurred subsequent to the effective date of the HCMCS.

We find the arguments unpersuasive. In John McShain, Inc. v. State, 287 Md. 297, 301 , 411 A.2d 1048 (1980), the Court of Appeals wrote: "We have stated repeatedly that where the language of a statute is free from ambiguity, there is no need to look elsewhere to ascertain the legislative intent, [citations omitted]. Instead, the statutory language should be given effect in accordance with the clear meaning of the words taken in their ordinarily and popularly understood meaning.” In the instant case the language of Chapter 235 of the Laws of Maryland, 1976 is free from ambiguity. Section 5 provides that "this Act... shall apply only to medical injuries occurring on and after ... [July 1, 1976].” Manifestly, "this Act” refers to the whole of Chapter 235, to §§ 1-5 inclusive.

We reject the argument that the application of the HCMCS is not limited to "medical injuries occurring on and after” the effective date. Similarly, we reject the argument that the medical injuries alleged by Mrs. Blanchfield occurred "on or after” that date. All of the harm, physical and mental, which Mrs. Blanchfield alleged, she alleged to have been caused by the incorrect diagnosis and by the chemotherapy. Mrs. Blanchfield was informed of that diagnosis on March 23, 1976; chemotherapy was discontinued on April 27,1976.

By April 27,1976, the harm was done and the medical injuries had occurred. That the effects of those injuries continued to be felt by Mrs. Blanchfield thereafter is irrelevant. Also irrelevant are rules used by the courts in interpreting statutes of limitations; such rules merely govern the point at which the courts will hold that the cause of action arising out of an injury accrues. See, Decker v. Fink, supra, 47 Md. App. at 209-11. ³³¹ II Admissibility of Evidence As we stated above, Dr. Haidak, Dr. Dennis’ former associate and co-defendant, was permitted to testify, over objection, that he terminated his practice with Dr. Dennis in September, 1976.

He was asked, again over objection: "Did the care and treatment that was accorded to this lady by Dr. Dennis have anything to do with your severing your business relationship with him?” He answered: "I think that it reflected a difference of philosophy in how to manage patients and how to run an office. And in that sense it did contribute to my — eventually to my leaving the practice.” Dr. Dennis argues that the admission of this testimony was error. If this were error it was not prejudical. Dr. Haidak testified that in his opinion Dr. Dennis’ treatment of Mrs. Blanchfield was below acceptable medical standards.

Even without the testimony, to which there was objection, the jury would doubtless have inferred that the two were no longer associated and that the mistreatment of Mrs. Blanchfield was at least one of the reasons. Ill Reduction to Present Value of Future Damages Dr. Dennis noted several exceptions to the court’s instructions as to damages. The first exception was to the court’s refusal to instruct the jury that it should reduce to present value any damages awarded to Mrs. Blanchfield for loss of future earning capacity. He contends that this failure was error.

There exists considerable authority in other jurisdictions to support Dr. Dennis’ contention. 4 See, e.g., Osborne v. Bessonette, 265 Or. 224 , 508 P.2d 185, 187 (1973), and ³³² authorities cited therein. But see, Kaczkowski v. Bolubasz, 421 A.2d 1027 (Pa. 1980) (holding that practice of discounting future lost earnings would be abandoned so as to offset effects of future inflation). It is reversible error in Maryland for a court to refuse to give such an instruction in a wrongful death action. Walston v. Sun Cab Co., 267 Md. 559, 575, 298 A.2d 391 (1973), aff'g, Sun Cab Co. v. Walston, 15 Md. App. 113, 129 , 289 A.2d 804 (1972).

We have held that the giving of such an instruction in a personal injury case is not error. Rafferty v. Weimer, 36 Md. App. 98 , 373 A.2d 64 (1977). Yet, no appellate court in this State has ever held that it is reversible error to refuse a reduction to present value instruction in an action for personal injuries. That some doubt exists as to the correct rule to be applied in personal injury cases in Maryland is largely attributable to the presence of certain language in the opinion of the Court of Appeals in Hutzell v. Boyer, 252 Md. 227 , 249 A.2d 449 (1969).

There, in an action for personal injuries, it was argued that the trial court erred in refusing to instruct the jury that any damages awarded for diminished earning capacity were to be reduced to present value. The Court of Appeals held that "the lower court’s refusal to grant such an instruction, if error at all, was [not] prejudicial error.” Id. Id. 252 Md. at 237 . The Court did not make explicit the basis for its holding, it stated only that "reduction of damages to present value is not customary in Maryland, except in cases of wrongful death. ...” Id. 252 Md. at 237-38 .

The significance of the language used in Hutzell and the exact nature of its holding have never been made clear. Although we stated in Lumber Terminals v. Nowakowski, 36 Md. App. 82, 91 , 373 A.2d 282 (1977), a personal injury action, that "the holding of Hutzell was that it is not prejudicial error to refuse a requested instruction that the projected earning capacity of an