Fleming v. Prince George's County

Smith, J., delivered the opinion of the Court. Murphy, C. J., concurs in part and dissents in part and filed an opinion concurring in part and dissenting in part at page 686 infra. Appellants, Ennis R. Fleming et al. (Fleming), sued Prince George’s General Hospital, Inc. (the Hospital), Prince George’s County, Dr. William D. Rosson (Dr. Rosson), and Dr. Frederick H. Wilhelm (Dr. Wilhelm), alleging that the negligence of the defendants was responsible for injuries sustained by Orpha E. Fleming on May 18, 1973, and her ultimate death on June 17, 1973. Plaintiffs included her husband, Ennis R. Fleming, her daughter, and the personal representative of her estate.

A trial judge granted a directed verdict in favor of the defendants at the end of all of the evidence. We granted the writ of certiorari prior to consideration of the matter by the Court of Special Appeals. We shall reverse. It is contended the trial court erred in ruling that there was no evidence upon which the jury could have determined that there was negligence and that it also erred in four instances in its rulings upon the evidence.

We shall develop the relevant facts as we consider each point. ⁶⁵⁸ I — Negligence a. The Law In considering the propriety of the grant of the motion of the defendant for a directed verdict we are obliged to resolve all conflicts in the evidence in favor of the plaintiffs and to assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the right of the plaintiffs to recover. Taylor v. Armiger, 277 Md. 638 , 358 A. 2d 883 (1976), and cases there cited. The standards by which a physician and a hospital are to be judged in cases such as this were recently enunciated by Judge Levine for this Court in Shilkret v. Annapolis Emergency Hosp., 276 Md. 187 , 349 A. 2d 245 (1975): “[A] physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances.

Under this standard, advances in the profession, availability of facilities, specialization or general practice, proximity of specialists and' special facilities, > together with all other relevant considerations, are to be taken into account.” Id. at 200-01 . “[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.” Id. at 202 . b. General Facts Dr. Rosson had been the family physician for the Flemings for about 11 years prior to the incident in question. He and Dr. Wilhelm had a mutual agreement to cover calls ⁶⁵⁹ for each other.

Mrs. Fleming had been treated by Dr. Rosson for a lung condition. On May 11, 1973, she was seen by Dr. Rosson in his office. At that time she complained of nausea, fatigue, weakness, and a pain in her lower back. Mrs. Fleming was then approximately 67 years of age.

On May 13, 1973, Mrs. Fleming was admitted to Prince George’s County Hospital with congestive heart failure, lung disease, and hypertension. Dr. Wilhelm was the admitting physician. He was covering calls on that day, a Sunday, for Dr. Rosson. On May 14, Dr. Rosson prescribed Librium, in doses of 10 mgs, three times per day, after she complained of nervousness and anxiety.

Mrs. Fleming had been on a prescription of Librium since October 1972 with the same prescribed dosage. Although the nurses’ records report that she was periodically disoriented, such behavior was not observed by her attending physician until May 17, 1973, despite daily contact. At approximately midnight on that day she was found walking the corridor of the hospital with a sheet over her and waving a dinner knife. The nurses on duty were unable to persuade her to return to her room.

She struck at them with the knife. Dr. Rosson arrived and attempted to get her back into her bed. She resisted, gesturing at him with the knife. She then went down to the main lobby where she attempted to leave the hospital.

The security guards brought her back, a Posey vest restraint was ordered for her, and Valium, 5 milligrams was administered at 12:20 a.m. on May 18 by order of Dr. Rosson. He also wrote an order that she should be watched carefully and that all sharp instruments should be kept away from her. Sometime later the patient was still restless and unable to sleep. Consequently, Nurse Decker placed a phone call to Dr. Rosson.

The answering service contacted Dr. Wilhelm’s home. Nurse Decker told Dr. Wilhelm of the earlier incident and that the patient was still quite restless. She also told him that Mrs. Fleming had been placed in restraints and had been administered the dosage of Valium prescribed by Dr. Rosson. At 3:25 a.m., Dr. Wilhelm prescribed 50 milligrams ⁶⁶⁰ of Seconal to be given intramuscularly immediately.

If that was not effective after one hour she was to receive 5 milligrams of Valium intramuscularly. He also ordered the taking of her vital signs as often as possible and directed that all her meals be served with plastic flatware. The Seconal injection was administered. When Nurse Decker checked ten minutes later Mrs. Fleming was apparently resting quietly.

At approximately 4:00 a.m., 10 minutes after Mrs. Fleming was last checked upon, the nurses discovered that she was absent from her room. They began to search for her. Subsequently, a sheet was seen hanging out of the window of her room. Investigation revealed that the patient had apparently attempted to escape from the Hospital through the window.

She had fallen several floors to her severe injury. Dr. Harold L. Hirsh was called as an expert witness by Fleming. Dr. Hirsh was licensed to practice medicine in the District of Columbia in 1943 and had practiced since that date. He was licensed in Maryland in December 1969.

Dr. Hirsh is a specialist in the field of internal medicine, being a diplómate of the American Board of Internal Medicine. Dr. Hirsh described himself as familiar with the standards of care and skill required of physicians and hospitals in Prince George’s County in May 1973. His qualifications were accepted by the trial court and are not challenged on appeal. c. Negligence of Dr. Rosson Dr. Hirsh testified that it was his “opinion, with reasonable medical certainty, that [Dr. Rosson] failed to meet the standard of care under the circumstances, one, in [Mrs. Fleming’s] pre-hospital evaluation; second, during the course of her hospital stay, her ongoing evaluation. [He] th[ought] that [Dr. Rosson] did not meet the standard of care on the night of the 17th,” the night that she jumped or fell to her ultimate death.

Dr. Hirsh said: “Dr. Rosson testified that Mrs. Fleming was ⁶⁶¹ cantankerous, was not complying with his request, ... or with his advice .... Did not do what he had advised her to do. Did not keep her appointments, terminated her appointments frequently without getting what she came for, and apparently felt a great deal of distress and frustration about that. “It is a well-known medical fact that elderly people who become obstinate and stubborn and cantankerous frequently are manifesting one of two things: One of them is that they are developing some cerebral arteriosclerosis, some senility is a common term, or maybe a manifestation of depression. These are well-known medical facts. “I think that Dr. Rosson fell below the standard of care when he merely assumed her behavior was due to obstinacy or stubbornness and did not, at that point, investigate or try to find out whether, in fact, this was purely her personality or whether, in fact, this represented some medical emotional change.

And in any event, even if it turned out to be a personality problem, I think that he failed to take appropriate action in overcoming it, to the patient’s detriment. “So that 1 did not hear him testify that he had talked to her husband or to other members of her family trying to get them to understand how important it was for them to try to get her to conform to the treatment to—to what she was supposed to do.” He thought the proper standard would have required Dr, Rosson to ascertain whether this was a personality problem or whether it represented some medical condition which might respond to treatment. Also, Dr. Hirsh said, “[Kjnowhig that she was obstinate or cantankerous for whatever reason, to her detriment,” then Dr. Rosson “should have taken other measures. Whether they would have been successful or not we don’t know, but in any event he did not ⁶⁶² undertake to do something more about it, by enlisting her husband’s aid or perhaps other members of the family.” Dr. Hirsh pointed out that the nurse’s notes stated that on May 14 “the patient was nervous and apprehensive,” after which Librium was prescribed by Dr. Rosson in the amount of 10 milligrams, three times a day, at 10:00 in the morning, 2:00 in the afternoon, and 6:00 at night. Dr. Hirsh was of the opinion that giving Librium “in this concentrated form over a limited period of hours did fall below the standard of care.” He said that “we know that it’s not rare, it’s infrequent, that you will get mental disturbance with the use of a drug like Librium, that when [Dr. Rosson] saw these symptoms ... on the nurses’ notes, rather than continue to attribute them to her personality, it was at that point that [Dr. Hirsh] felt that [Dr. Rosson] failed to ascertain it was the Librium, in fact, responsible for her agitation and confusion, because she didn’t have it on the first day when she wasn’t getting her Librium.” Relative to the night of May 17 and the morning of May 18, Dr. Hirsh said: “[Dr. Rosson] fell below the standard of care in management of Mrs. Fleming while he was there.

I think that, having been on the scene and having been attacked, although feebly, that when Mrs. Fleming escaped, so to speak, and when she was brought back, that because this represented a marked departure from her behavior before, that rather than play, what I would call, an armchair role that he should have examined Mrs. Fleming because he may have found that something had occurred which could explain her behavior which he might have been able to treat medically. “Now, Dr. Rosson rightfully considers that Mrs. Fleming was hostile to him at that time and that he might very well aggravate her. But, at the same time, there are other physicians. Dr. Wilhelm could have been called, he was available, and there are house officers. And I feel if he wanted to exclude ⁶⁶³ himself because he didn’t want to aggravate her or agitate her anymore, then he should have gotten another physician to examine her.

But I think that examination was in order. I don’t think that he could have depended on what happened before and — as a matter of fact, the last examination that we have a record of is three days or two days earlier, on the 15th. “So that I feel that he should have examined her, and in addition to that I think that he fell below the standard of care in ordering more Valium. Because, again, he failed to consider that the Librium was the source of her problem. And all he was doing, in fact, was giving her another drug similarly related chemically, similarly acting pharmacologically. “And the other thing is since Mrs. Fleming had apparently gotten out of the restraints, I think that he or someone with comparable experience and expertise and knowledge should have seen what was going on with the restraints, whether they were, in fact, being properly applied and whether they were properly applied.

And, again, if he is unwilling to do that, then I think that he should have gotten someone to act as a surrogate. “Q. When you say ‘improperly’ or he should have seen that they were properly applied, are you relating to the physician like or would there be instructions that would go with that? A. Well, I actually have difficulty with allowing restraints to be used at this particular point. Dr. Rosson does indicate that he worried about using restraints, and that it may have been that the restraints were aggravating and agitating her. “So that at this point I think he should have removed all things which might have been offensive to her, so to speak, and one was the restraint, and to secure competent help that could sit with her and — rather than imposing restraints. ⁶⁶⁴ But if, in fact, he felt that it was impossible to do that, for one reason or another, then since he was already going to use restraints then I think that half-way measures, just using the Posey and vest, were inadequate and he should actually have had her — her arms restrained. “Now, that is not the most desirable, but on the other hand when you are in a difficult situation you have to do the best under the circumstances, and that may have been the best under the circumstances. But none of these other alternatives were tried.

He lets the nurse put her back in bed. The nurses and two attendants who brought her back from the emergency room strapped her down. “And not only that, but certain things they did, other things they claimed they couldn’t do. They didn’t take her purse away from her, they didn’t take other objects away from her.” Dr. Rosson was not to be available after midnight on the 17th. Dr. Wilhelm, pursuant to their usual arrangements, was to take care of his patients.

Relative to this Dr. Hirsh said: “I think the standard of care would require that if Dr. Rosson was not going to be on call for this patient for the rest of the night that he should have communicated directly with Dr. Wilhelm and told him what had transpired and what he had done, so that if there was any further problem Dr. Wilhelm would be well informed as to what Dr. Rosson’s opinion was, what he had done, why he had done it, so that Dr. Wilhelm would know as much about this situation as he should or could.” The opinion of Dr. Hirsh as to the cause of death was set •forth in the record: “Q. Now, he also stated he gave her an amount of Librium which you felt, under these circumstances, failed to meet the standard of care, and that you ⁶⁶⁵ felt that as a result of this, this condition brought about — I would like to ask you whether or not, by assuming that this brought about this condition, the giving of this medication was a — has a causal connection with her tragic condition? A. I think it was the immediate or direct cause of her death. “Q. Why would you say that? A. Well, I think that Mrs. Fleming became confused, agitated, disoriented, hostile, aggressive, and as a result of that could not be contained or restrained and ultimately did free herself from her bond. She did not really appreciate, I am sure, what she was doing, was psychotic to the extent she felt she had to go home when, in fact, she shouldn’t have gone home she was too sick.

And then, obviously, not knowing where she was, not, I am sure, appreciating she was on the seventh floor, decided to let herself out of the window, and she would have required a great more apparatus to get out. “So that I think this agitation, this confusion, this disorientation ultimately caused her to want to escape, so to speak, from something that was actually to her betterment.” The record further reflects: “Q. Doctor, you also stated in your opinion he fell below the standard of care by not consulting with a psychiatrist. Are you able to state, in your opinion, with reasonable medical certainty, as to whether the failure to do this was a causal factor contributing to her death? A. It’s my opinion that it was, yes.” Dr. Hirsh summarized relative to the acts of Dr. Rosson: “Q. Doctor, during the course of your testimony you have described various acts on the part of the two doctors and on the part of the hospital that you stated caused the death of Mrs. Fleming. Would ⁶⁶⁶ you explain to the jury why it is that you feel that all of these acts caused it? “(The Witness) I think that in the beginning that Dr. Rosson set in motion a whole series of events which continued and at various times he might have had the opportunity to stop them and, at any point, the tragic event could have been avoided. “I think starting her on the Librium and not considering the impact of the Librium, not having considered the impact of the Dyazide, not having made notes, not having personally supervised her care when she was returned from the emergency room, not having sought adequate consultation, not having conferred with Dr. Wilhelm or advised him of the circumstances, I think all of these things ultimately — and at different times there was opportunity for him to have intervened and stopped the course of events that ultimately resulted in her leaving the room through the window and die ultimately.” d.

Negligence of Dr. Wilhelm The record relative to the examination of Dr. Hirsh as to the negligence of Dr. Wilhelm is: “Q. What would have been the proper standard of care, and how was there a failure of that? A. I think Dr. Wilhelm, in order to conform to the standard of care, should have been in personal communication with Dr. Rosson to try to find out what had happened to this lady in the last five days since admission so that he could more fully appreciate what the problem was and then render more appropriate treatment. “I think by failing to find out he relied on the description of a nurse, which ... led him to make certain conclusions. I think in this kind of case, ⁶⁶⁷ under these circumstances, not having an on-going familiarity, that he should have talked to Dr. Rosson. He knew nothing of what went on from the night he wrote her original orders.

And his orders ... that day that he admitted her, I think, were well within the standard of care. But I think that when the nurse communicated with him, whichever way it was, that at that point he was obligated to get in touch with Dr. Rosson. “Q. Assuming the correctness of his testimony that the nurse did not tell him about these various incidents, but did tell him the patient . . . needed a sedative and trying to get out of the Posey restraint, and considering the time of the call, and considering his testimony that he did not feel that it was necessary to make inquiry concerning her condition, do you have any opinion as to whether that met the standard of care? A. I think it fell below the standard of care because Dr. Wilhelm testified on the night of the admission, or the day of admission Mrs. Fleming was less concerned about herself than Mr. Fleming, and then on the night that he is called about her she is trying to get out of the restraints, and I think that ... a physician under these conditions would want to know why is this patient in a Posey restraint, what happened from this docile, unconcerned woman to someone who is in restraints. And either he should have questioned the nurse more fully — but I think that to get more accurate, more reliable, more expertise or expert information, I think he should have called Dr. Rosson. “Q. What about the conversation with the nurse, should he make further inquiry of the nurse?

A. I think he should have queried her more specifically, more extensively to try to find out from the nurse what had transpired during these past few days. “Q. And had he made these inquiries and ascertained the facts as they have been brought out ⁶⁶⁸ to the evidence, and assuming that the incidents as described in the medical records are true, do you have an opinion as to what the standard of care would have required of him in terms of taking action on behalf of the patient? A. Well, I think if he had to find out all the things that had transpired he should have come to the hospital and examined her or had a house officer examine her. I think we are talking in terms of getting the greatest amount of information and to find out whether it is a medical problem and again get consultation from a psychiatrist, under the circumstances. He really can’t read his mind, but it certainly seems reasonable if he had known what had transpired he would have seen a great change in this woman. “I think — as to Dr. Wilhelm, I think that when he received the call from the hospital, or when he was in contact with the hospital, that particularly he failed to get a complete history at that time so that he would be fully aware of what was going on.

And he failed to inquire either of the nurse if, in fact, she did not tell him, nor did he communicate with Dr. Rosson. “So that he treated this simply as a simple case of a woman being upset and agitated and did not either talk to Dr. Rosson or didn’t personally intervene by going there to see what was happening or what had happened and . . . read the chart and see what was going on. And as a result of that I think that his orders were inadequate. “If the Seconal did not contribute to her agitation it certainly didn’t relieve it, obviously, and so again he had the opportunity to call a psychiatrist. But I think his failure to inform himself and his failure to act on that, on the proper information, again resulted in Mrs. Fleming’s activity and her death.” ⁶⁶⁹ e. Negligence of the Hospital Relative to the negligence of the Hospital Dr. Hirsh said: “I fee] that the nurses fell below the standard of care in not conveying to Dr. Rosson more forcibly their opinion as to her emotional or mental problem.

They were reporting her being agitated, confused, and disoriented, and yet no action was taken by Dr. Rosson to that extent, and I think at that point it requires the nurse and physician to communicate to get their signals straight. “I think it may have been appropriate for the nurses to apply the Posey or the restraint at that time without a specific physician’s order if they felt that that was absolutely required. But once having done that to secure the patient, I don’t think that... it meets the standard of care for that device to be continued . .. without the consent and approval of a physician. “As a matter of fact, there has been voiced here some concern whether restraints had not aggravated her. I don’t think that applying restraints on a continuous basis falls within the expertise of a nurse. * * * “As far as the hospital is concerned, I think that on the basis of what the nurses did, putting on restraints without permission, without approval, not restraining her adequately and properly, not supervising her properly, not taking away things which had become dangerous instruments, not communicating with the husband, not securing other proper help, I think all of these things, in my opinion, caused Mrs. Fleming’s ultimate death.” ⁶⁷⁰ f. Summary Relative to Negligence It will be seen that in the opinion of Dr. Hirsh both physicians and the Hospital failed to meet the standards required of them under our opinion in Shilkret Obviously, the jury would have been free to believe only a portion of the testimony of each side.

Racine v. Wheeler, 245 Md. 139, 144, 225 A. 2d 444 (1967), and Md. Chemical v. Monn, 241 Md. 127, 130 , 215 A. 2d 731 (1966). However, resolving all conflicts in the evidence in favor of the plaintiffs and assuming the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the right of the plaintiffs to recover, there was sufficient evidence here to warrant submission of the case to the jury. Accordingly, the trial judge erred. II — Exclusion of Evidence Fleming takes issue with the rulings of the trial judge in certain instances in excluding evidence.

Since there must be a new trial we consider those points for the guidance of the trial court upon the remand. a. Alleged Inconsistent Statements of Nurse Decker Mary Theresa Decker, the nurse in charge of the area of the Hospital in which Mrs. Fleming was a patient at the time of the unfortunate incident leading to her death, was called as a witness by Fleming. There was an initial attempt to have her deemed an adverse witness pursuant to Code (1974) § 9-113, Courts and Judicial Proceedings Article, it being claimed that she was the “managing agent of a corporation, partnership or association” (the Hospital) within the meaning of the statute by virtue of her supervisory position. The trial court ruled to the contrary.

No issue has been taken on this appeal with that ruling. Mrs. Decker testified as to the knife incident and to the return of Mrs. Fleming to her room. The record then is: “Q. What did Dr. Rosson do at that time? A. Well, he sees all his patients most of the time around that time.

He tried talking to her and he ⁶⁷¹ gave us orders, as they were described, what was carried out. “Q. Did he talk to her after she was brought back? A. I believe so.” An attempt was then made to confront Mrs. Decker with her deposition. When an objection to this was sustained the following took place at the bench out of the hearing of the jury: “(Mr. Brooke) I would like to state for the record on Page 38 of the deposition — she has completely changed her testimony, and I believe in view of this she could be declared a hostile witness. She previously stated, under oath, at Page 38, ‘Did Dr. Rosson come in and examine the patient?

Answer: Well, I wasn’t watching Dr. Rosson, I was busy. He might have went in to talk to her. Question: And you don’t know whether he did or not then? Answer: No, I don’t.’ That was her statement. “(The Court) Very well.

You can’t impeach- your own witness. This is your own witness. We don’t think the answer is to the extent that you indicate. “(Mr. Brooke) I would like to request she be declared a hostile witness at this time, your Honor. “(The Court) No. It will take a whole lot more than that. “(Mr. Brooke) For the record, your Honor, when she was testifying at her deposition she made certain statements that I assume were correct. If she is going to repudiate her statement I would like to point that out. “(The Court) We can only take care of those things as we come to them, Mr. Brooke.” Mrs. Decker was questioned relative to various items removed from the possession of Mrs. Fleming.

The record relative to eyeglasses was as follows: “Q. . . . Was another object discovered in her ⁶⁷² possession at a later time? A. One time or another we would try to confiscate everything from her. We even put everything in the hallway, all the tables. “Q. When you say ‘everything,’ what was the next thing you observed in her possession?

A. The eyeglasses. “Q. The eyeglasses, you