Franklin v. Gupta

³⁴⁹ WILNER, Judge. This is a medical malpractice case. Appellant, an unfortunate soul with a host of physical and emotional problems, also developed carpal tunnel syndrome—a condition that causes pain in the wrist and muscle weakness in the hand. He consulted Dr. Shanker L. Gupta, a general surgeon, who recommended surgical treatment for that condition.

Surgery was scheduled at Church Hospital for 10:00 a.m. July 17, 1981. Dr. Herbert S.T. Lee, an anesthesiologist, and Gary J. Sergott, a certified registered nurse anesthetist, were assigned by the hospital to administer and monitor the anesthesia. Unfortunately, Dr. Lee was also scheduled to administer and monitor anesthesia to another patient in another operating room at the hospital at the same time.

Dr. Lee chose to tend to the other patient, and so the actual administration and monitoring of the anesthesia to appellant fell to Nurse Sergott. As we shall see, things did not go as planned. The anesthesia administered by Nurse Sergott was not only not effective, but appellant suffered certain physical and emotional trauma from it, and the surgery was eventually cancelled. As a result of this experience, appellant filed a claim with the Health Claims Arbitration Office against Dr. Gupta, Dr. Lee, Nurse Sergott, and the hospital.

After an evidentiary hearing, the arbitration panel found no liability on the part of any of the defendants and entered an award in their favor. Appellant rejected the award and filed suit in the Circuit Court for Baltimore City. After a de novo trial, the jury agreed with the arbitration panel that there was no liability on the part of Dr. Gupta, but it concluded that the other defendants were culpable. It returned a verdict in favor of Dr. Gupta but against Dr. Lee, Nurse Sergott, and the hospital in the amount of $375,000.

Appellant’s 75% victory was short-lived. Believing that appellant had failed to show either the standards of care that were violated or that the violations shown were the ³⁵⁰ proximate cause of the injuries suffered by him, the court granted motions for judgment NOV filed by Lee, Sergott, and the hospital and entered judgment in their favor. Further declaring its judicial conscience shocked by what it regarded as “grossly excessive” damages, the court also conditionally granted motions by Lee, Sergott, and the hospital for a new trial unless appellant agreed to accept a remittitur of all but $50,000. The effective judgment was in favor of all four defendants and ended the case in the Circuit Court.

The grant of a new trial as to Lee, Sergott, and the hospital was to become effective only if the judgments NOV were reversed on appeal and appellant refused to accept the remittitur. See Md. Rules 2-532(e); 2-533(c). This appeal followed. Appellant complains that the court erred (1) in entering the judgments NOV, (2) in ordering the new trial in default of appellant accepting a $325,000 remittitur, and (3) in declining to give two requested jury instructions bearing on Gupta’s liability.

We find merit in appellant’s first complaint; the court erred in granting the judgments NOV. We find no reversible error in the other decisions. We therefore shall affirm the judgment in favor of Dr. Gupta, reverse the judgments in favor of the other three defendants, and remand the case for such further proceedings as may be required by the order conditionally granting a new trial. I. UNDERLYING FACTS We mean no disrespect when we say that appellant was not a picture of health when he presented himself at the hospital on July 16, 1981—the day before his scheduled surgery.

He had a history of syncope (temporary blackouts), asthma, emphysema, bronchitis, hyperthyroidism, chronic depression, and a nervous condition. He was also excessively—“morbidly”—obese; five feet, five inches tall, he weighed 295 pounds. He was permanently and totally disabled from employment and subsisted from social security disability benefits. ³⁵¹ Dr. Lee, as we indicated, was designated by the hospital as the anesthesiologist for appellant’s surgery, along with Nurse Sergott. Dr. Lee visited appellant on the afternoon of the 16th for an “anesthesia evaluation.” Because of the patient’s asthma, obesity, and hyperthyroidism, Dr. Lee recognized that appellant was a “high risk patient for anesthesia”; he therefore decided against a general anesthesia and opted instead for an axillary or brachial block. 1 He did not, however, determine which anesthetic to use or which, if any, analgesic to use.

Nor did he, prior to the surgery, (1) record his evaluation in appellant’s chart, (2) see appellant again, or (3) discuss the case in any way with Nurse Sergott. At 10:00 the next morning, Dr. Lee reported to the other operating room and had no further involvement with appellant until after the anesthesia administered by Nurse Sergott proved ineffective and a dispute arose between Nurse Sergott and Dr. Gupta as to what to do about it. Sans any advice or direction from Dr. Lee and without any notes of Dr. Lee’s evaluation in the medical record, Nurse Sergott examined appellant on the morning of the 17th, just before the surgery. He noted from his observations and from Dr. Gupta’s notes that appellant was obese, asthmatic, and dyspneic (i.e., he had difficulty breathing).

The last of these problems Nurse Sergott attributed to appellant’s obesity and asthma, exacerbated by the fact that he was a heavy smoker. On the other hand, from the pre-operative tests that were done, it appeared that appellant’s blood studies, electrocardiogram, blood pressure, heart rate, and chest x-ray were all normal. Nurse Sergott independently decided to use a brachial block; he decided, by himself, which drug to use for that purpose; and he also decided, by himself, what analgesic to use and how it was to be administered. The analgesic chosen by Nurse Sergott ³⁵² was Sublimaze—a synthetic narcotic analgesic listed as a Schedule II controlled dangerous substance.

Sergott administered the brachial block while appellant was in the “holding room.” Just before administering that block, he gave appellant one cubic centimeter (cc) of the Sublimaze. As appellant was being wheeled into the operating room, Sergott gave him a second cc of Sublimaze, and about 10 minutes later he gave him a third cc of that drug. At some point shortly after administering the third dose of Sublimaze, Nurse Sergott noticed that the block was “patchy”—i.e., “[t]he media flesh was not completely blocked on his hand.” He wanted to give appellant another block, but Dr. Gupta insisted that he put appellant to sleep. Believing that general anesthesia was inappropriate and that, “being a surgeon, [Dr. Gupta] is not aware of anesthesia,” Nurse Sergott decided to consult Dr. Lee who, of course, was in another operating room.

Sergott summoned another nurse anesthetist—Ms. Belvay—went over appellant’s vital signs with her, and then left to consult with Dr. Lee. Dr. Lee, then busy with another patient under anesthesia and unable to leave, agreed that appellant should be given another brachial block and not put to sleep. When Nurse Sergott returned to the operating room with this confirmation, he found Nurse Belvay ventilating appellant with oxygen. It appears that, about 10 minutes after administration of the third dose of Sublimaze and while Nurse Sergott was conferring with Dr. Lee, appellant’s breathing became shallow.

Indeed, according to the medical record, he became cyanotic—i.e., his skin turned blue because of lack of oxygen in the body. He then became bradycardic (slow heartbeat) and had a period of asystole (his heart stopped beating entirely). Just how long the asystole lasted is unclear, in part because the critical entry on the medical record is smudged with ink and is therefore unreadable; there was evidence that it lasted from 10 seconds to two minutes. Appellant was promptly intubated and given Atropine and cardiopulmonary resuscitation, and ³⁵³ his heartbeat returned to normal.

At that point, Dr. Lee appeared and instructed Dr. Gupta to cancel the surgery. Appellant remained in the hospital until his discharge on July 21, 1981. He never did have the surgery on his wrist.

II

JUDGMENTS NOV—LEE, SERGOTT, HOSPITAL A. Governing Principles Preliminarily, we note that the hospital has conceded that Nurse Sergott was its employee; it is clear, then, that the hospital would be vicariously liable for any culpable negligence on Sergott’s part. Our discussion of the evidence relating to Sergott, therefore, also applies to the hospital. A plaintiffs burden in a medical malpractice case grounded on negligence was well-summarized in Lane v. Calvert, 215 Md. 457, 462-68 , 188 A.2d 902 (1958): “There is a presumption that the doctor [or other health care professional] has performed his medical duties with the requisite care and skill.... The burden of proof is on the plaintiff to show both a lack of the requisite skill or care on the part of the doctor and that such want of skill or care was a direct cause of the injury; and if proof of either of these elements is wanting the case is not a proper one for submission to the jury....

The ... degree of skill required is ... ‘not the highest or greatest, but only such as is ordinarily exercised by others in the profession generally.’ ... It is well established by the case law in this State that the mere fact that an unsuccessful result follows medical treatment is not of itself evidence of negligence.” More specifically to the point in terms of this case, the Court in Weimer v. Hetrick, 309 Md. 536, 553 , 525 A.2d 643 (1987), quoted with apparent approval this statement from Waffen v. U.S. Dept. of Health & Human Services, 799 F.2d 911, 915 (4th Cir.1986): “ ‘The general principles which ordinarily govern in negligence cases also apply to medical malpractice claims under Maryland law. A prima facie case of medical ³⁵⁴ malpractice must consist of evidence which (1) establishes the applicable standard of care, (2) demonstrates that this standard has been violated, and (3) develops a causal relationship between the violation and the harm complained of____ As in any other case founded upon negligent conduct, the burden of proof in a medical malpractice claim rests upon the plaintiff.’ ” See also Johns Hopkins Hospital v. Genda, 255 Md. 616, 620 , 258 A.2d 595 (1969). The precise issue before us, of course, is whether the trial court erred in entering the judgments NOV based on its perception that the evidence was insufficient to meet this tripartite test.

We therefore must assume the truth of all credible evidence and all inferences of fact reasonably deducible from it tending to sustain appellant’s contentions. If, in so doing, we find any legally relevant and competent evidence, however slight, from which the jury could rationally have found that test satisfied, we must reverse the judgments NOV. See Impala Platinum v. Impala Sales, 283 Md. 296 , 389 A.2d 887 (1978); McGarr v. Boy Scouts of America, 74 Md.App. 127 , 536 A.2d 728 (1988). B. Evidence of Negligence—Standard of Care, Violation of Standard, Causation The principal witness testifying on appellant’s behalf with respect to the relevant standards of care and their violation by Dr. Lee and Nurse Sergott was Dr. A. Terry Walman, who was associated with Johns Hopkins Hospital and was qualified as an expert in anesthesiology.

Dr. Walman reviewed all of the relevant medical records pertaining to appellant and to what occurred on July 16 and 17, 1981. Based on this review, he found “five different areas in which the standard of care for patients such as [appellant] undergoing the procedures that were planned in July of 1981 ... were broken.” The first deficiency, he said, was that “the pre-operative evaluation was incomplete for a patient who presents like [appellant].” Given all of his other problems, appellant was ³⁵⁵ not a routine patient, but “[h]e was treated routinely as far as the pre-operative evaluation goes. The tests that were done were routine. The work-up that was done for him was routine.” And that led Nurse Sergott to underestimate the actual risk.

The American Society of Anesthesiologists (ASA), Dr. Walman noted, has developed a five-category physical status designation. ASA II, he said, is the designation “for a person who has a few medical problems, all of which are well-compensated, and none of which really are so significant as to cause any impairment.” ASA III “is for someone who has more complicated problems, multiple problems, all significant, but are all thought to be well compensated at the time for surgery.” (Emphasis added.) ASA IV “is someone who is multiple medical problems not well compensated and therefore is at higher risk for anesthesia and surgery.” (Emphasis added.) Nurse Sergott evaluated appellant as ASA III; Dr. Walman assessed appellant as ASA IV. Noting appellant’s massive obesity, Dr. Walman said that “[t]he proper medical workup” for such a person “involves a full pulmonary consultation work-up, and full cardiac consultation work-up, work-up of his liver, work-up of in this case fainting spells [i.e., the syncope], thyroid condition.” Much of this, he stated, had not been done prior to the surgery. Yet “ASA classification depends upon the information that you have.

You should have had more information, more information would have had him in the classification of ASA IV.” Dr. Walman went into considerable detail with respect to this point. An arterial blood gas test was never done, yet for “someone who presents a lung problem like [appellant], it’s mandatory, has to be done.” (Emphasis added.) That test, he said, “would have made people much more aware of how sick he really is.” Because these various tests had not been done, “they didn’t know this patient well enough with the information they had to ... make a determination and take him to the operating] room for any kind of anesthesia.” ³⁵⁶ Finally, as to this point, Dr. Walman opined that, whenever a particular form of anesthesia, such as a brachial block, is planned, it may fail, and it is necessary to consider general anesthesia as a backup: “If the operation was in mid course of the operation and ... the block failed, he will need to be taken care of, he needs pain relief. The best way would be to do general anesthesia. You have to be prepared to do a general.

If you’re afraid to, because you don’t have enough information, then you need to stop and get the information.” The second deficiency, according to Dr. Walman, was the lack of any communication between Dr. Lee and Nurse Sergott. Earlier in his testimony, Dr. Walman stated that “the prevailing standards in the same or similar circumstances in 1981 demand that an anesthesiologist select the anesthesia, the agents, the mode of administration, to be used for the patient, and [that] it be recorded on the anesthesia chart.” Expounding on this, Dr. Walman stated: “If the anesthesiologist wasn’t going to be the one for the next day, he should have communicated with someone, written a note in the chart____ If he thought that he was going to be the anesthesiologist to work with the nurse, then he should have ... written a note once again for the nurse to read, or at least talk to the nurse____” The breach of this requirement was essentially conceded. Dr. Walman observed that “there was no communication in the chart, no written communication as to anything about the anesthesia evaluation by an anesthesiologist ... to anyone who might be administering anesthesia care.” Apart from the lack of any written communication, “[h]e didn’t talk to any other anesthesiologist, he didn’t talk to the nurse anesthetist.” The third deficiency was succinctly stated by Dr. Walman: ³⁵⁷ “The third thing that falls below the minimum standard is the unavailability of the anesthesiologist to the patient. Dr. Lee has said that he was in ... [a]nother operating room, and unable to come and take care of his patient.

Well, if he was the responsible anesthesiologist ... then he should have been available ... to come to the patient. It’s okay to work with nurse anesthetists, actually okay to cover two rooms taking care of patients, physically to each patient. But it’s not okay to be tied up in a room. Yes, you can’t leave and have a nurse anesthetist working under you, and I find that as breach of standard.” The fourth deficiency involved the administration of the Sublimaze.

According to Dr. Walman, Sublimaze (or Fentanyl citrate) is a narcotic “100 to 150 times more potent than morphine.” 2 Normally, he said, a three-cc dose would not be inappropriate, but for a patient like appellant, who already had breathing difficulty and was to be in a supine position “to be given that drug in his state was just as contraindicated, shouldn’t be done.” Walman added: “In his present disability, he would get in trouble with that medicine. I think if they had known him better, they wouldn’t have done it or at least known how to handle it. It could have been used if they decided to breathe for him ahead of time. They didn’t.

He was breathing on his own and couldn’t breathe after that.” The fifth breach, said Dr. Walman, was in Nurse Sergott having to leave appellant to consult with Dr. Lee. Sergott himself didn’t understand appellant as well as he should have, and “for him to leave this patient even in the hands of ³⁵⁸ another nurse anesthetist, to have to go and talk to the doctor about what he should do next is not a good standard of care.” It is all right, Dr. Walman stated, “to transfer care of a patient to another person equally qualified as yourself, but the nurse who came in couldn’t have possibly understood [appellant] as well as she should have for his problems.” After having discussed each of these deficiencies, Dr. Walman was asked his opinion as to whether those breaches were a direct and proximate cause of appellant’s injuries. He stated: “My opinion is that the five different categories that I outlined led to each one of them in a way and certainly altogether the event in the operating room, whereupon Mr. Franklin had a cardiopulmonary arrest, had to be resuscitated.” Asked then what harm resulted from these breaches, Dr. Walman opined that “the events which occurred led to him being first of all very near death at one point, having to spend a day and a night in the intensive care unit which was not planned for the surgery, having to spend a total of five days in the hospital instead of leaving the hospital shortly after the surgery, never having the problem with his hand fixed.” Having given the general opinion as to causation, Dr. Walman was asked to examine each of the five deficiencies and its causal impact. As to the first, he said: “[I]f a more complete pre-evaluation had been done ... a better understanding of Mr. Franklin’s problems would have been had, and the arrangements for anesthesia as to what was done, and when it would be done, I think would have been different.

And therefore the events would not have occurred, or would have been less likely to have occurred, much less likely.” . A similar response was given with respect to the lack of communication between Dr. Lee and Nurse Sergott—that had there been communication, Sergott would have had a better understanding of appellant’s problems and “would ³⁵⁹ not have had to consult with the anesthesiologist in another room, so I think this was a causative feature of the crisis that occurred in the operating room.” As to Dr. Lee’s absence—the third deficiency—Dr. Walman said: “Yes. Once again, had Dr. Lee been available to the patient, he would have likewise been available to the nurse who was with the patient, and the events, I think, would have been much less likely to have occurred, because they would have been able to make a plan when the block initially failed and decide on what drugs to use.” Dr. Walman was then asked about the effect of the administration of three cc’s of Sublimaze—the fourth deficiency noted by him. Though the doses were given incrementally, Dr. Walman said that the time period during which they were given was short enough that all “or a significant portion of that drug was given in his body at some point.” In the short period of time the doses were given, he asserted, “it had a serious effect.” More particularly, he testified: “I think that the drugs, the narcotics that were used are really the final straw.

They are the straw that broke the camel’s back, if you will, of what happened, the suppine [s«c] position or lying flat on his back, other medications that he was given that were still in his body, the lack of planning for any other form of anesthesia, and the giving of the drugs, just topped everything off, and pushed him over the edge into that crisis, that crisis was caused really by the narcotics.” As we indicated, Dr. Walman testified briefly as to the harm to appellant resulting from what occurred, alluding to his being near death at one point, having to spend extra time in the hospital (part of it in the intensive care unit), and never having the operation he came to the hospital for in the first place. Indeed, Dr. Gupta testified that, when he last saw appellant in March, 1982—eight months later—appellant was still suffering from the same condition. There was much other evidence as to injury as well, most of it dealing with subsequent emotional trauma and behavioral ³⁶⁰ changes that both professional and lay witnesses attributed to the events of July 17. Dr. Lee and Nurse Sergott succeeded in convincing the trial court that this evidence was lacking in two critical respects—that Dr. Walman never established what the standard of care was as to some of the five deficiencies and that it was never shown that the outcome would have been any different had Lee and Sergott done all of the things Dr. Walman claimed they should have done.

They press the same arguments in the appeal. Unlike the trial court, we are not convinced. Dr. Walman did not suggest that the mishap was attributable solely to any one of the five deficiencies he found, to the exclusion of the others. The thrust of his testimony was that they were cumulative in their effect.

He made clear, as clear can be, that Lee and/or Sergott should have recognized that appellant presented an unusually high risk (ASA IV) and that they should not have proceeded without more specific pre-operative tests, some of which he named specifically. That stated a standard of care as well as its breach. The effect of that breach was that neither of them knew enough about appellant to be prepared for what occurred—what, given appellant’s obesity and breathing problems, could have been anticipated. That aspect of the problem was exacerbated by the lack of any written or oral communication between Lee and Sergott, the effect of which was to allow Sergott alone to choose the anesthetic agent, the analgesic agent, and their dosages.

The former was clearly insufficient; it failed to anesthetize the arm; the latter proved to be too much. Lee and Sergott complain that, while critical of the drug and dosage given by Sergott, Dr. Walman never said what drug and dosage should have been given. It is that omission, they urge, that represents both a failure to state the applicable standard of care and a failure to establish a foundation for showing that the mishap would not have occurred if the anesthesia had been handled differently. ³⁶¹ Under the circumstances here, Lee and Sergott demand too much. This is not at all like Lane v. Calvert, supra, 215 Md. 457 , 138 A.2d 902 , upon which they rely.

The alleged negligence there arose from post-operative care— the failure to use a particular test, ultimately used successfully to locate and drain pus accumulations resulting from the surgery, earlier in the post-operative period. The problem in that case was that the plaintiff’s expert witness never testified as to when a physician of reasonable skill would have used the test in light of everything else that the defendant doctor had done. That is not the case here. Dr. Walman made very clear what should have been done.

The failure to do these things led to “the event in the operating room.” Had there been proper pre-operative testing and assessment, Lee and Sergott would have had a better understanding of appellant “and the arrangements for anesthesia as to what was done, and when it would be done, I think would have been different.” Thus, Walman concluded, “the events would not have occurred, or would have been less likely to have occurred, much less likely.” We find that sufficient. 3 With the evidence we have recounted and that to which we have only alluded, the argument that appellant failed to prove any injury caused by the negligence of Lee and' Sergott is simply ludicrous. For these reasons, we conclude that the court erred in entering the judgments NOV. ³⁶² III. NEW TRIAL—REMITTITUR In reviewing the conditional grant of a new trial, we apply a wholly different standard than that governing judgments NOV. Whether the case is civil or criminal, the law has long been and remains today that the decision to grant or deny a timely motion for new trial is a discretionary one.

This is true as well to the granting or refusal to grant a remittitur. Conklin v. Schillinger, 255 Md. 50 , 257 A.2d 187 (1969); Banequra v. Taylor, 312 Md. 609 , 541 A.2d 969 (1988). In many cases, the Court of Appeals has actually held that such a decision is not even appealable. See cases cited and quoted in Kirsner v. State, 296 Md. 567 , 463 A.2d 865 (1983).

The better, and more recently expressed, view is that the grant of a new trial is appealable, but because of the broad range of discretion accorded the trial judge, the decision is reviewable, on an abuse of discretion standard, only “under extraordinary circumstances.” Banequra v. Taylor, supra, 312 Md. 609, 624 , 541 A.2d 969 , quoting in part from State, Use of Shipley v. Walker, 230 Md. 133, 137 , 186 A.2d 472 (1962); see also Mack v. State, 300 Md. 583 , 479 A.2d 1344 (1984). Here, we must look at all of the evidence, not just that favoring the plaintiff. The principal injury claimed by appellant was his subsequent emotional reaction to what occurred. Considering his delicate physical and mental condition before the occurrence, along with the fact that the nature, extent, and proximate cause of appellant’s post-traumatic complaints were seriously contested by the defendants, we decline to hold that the trial judge abused his discretion in finding the jury’s verdict unreasonable in amount. 4 ³⁶³ IV.

JURY INSTRUCTIONS A. What Was Asked and What Was Given At the close of the evidence, appellant submitted a number of proposed jury instructions, among which were Nos. 11 and 12. Proposed Instruction No. 11 was captioned “Responsibility and Liability of Surgeon—the Captain of the Ship Doctrine.” The relevant part of it is as follows: “While Mr. Franklin was being prepared to undergo surgery, Dr. Gupta, the surgeon, is ordinarily regarded in law as having the exclusive responsibility and control over the case. Although Dr. Gupta denies any knowledge of anesthesia and asserts that he