Hetrick v. Weimer

BLOOM, Judge. Jason Michael Hetrick, a premature baby delivered by caesarean section, died shortly after birth. As a result of the infant’s death, his parents, Jody Ann Hetrick and Michael Cary Hetrick, sought to recover damages from various health care providers, including appellees, Dr. Stanley R. Weimer and Anne Arundel General Hospital. They were unsuccessful both at the Health Claims Arbitration level and at trial before a jury in the Circuit Court for Anne Arundel County.

Appealing from the judgment of the circuit court, Mr. and Mrs. Hetrick make several assertions of error. Although he won below, Dr. Weimer cross-appealed in order to preserve an assertion of error in the event of reversal and retrial. We find error in the instructions to the jury and reverse for that reason; we find no error in the court’s ruling from which the cross-appeal was taken. Background Jody Ann Hetrick was admitted to Anne Arundel General Hospital on September 2, 1978, suffering from nausea, vomiting, abdominal pain, and several other symptoms.

She was in her thirty-first or thirty-second week of pregnancy. She was under the care of Dr. Thomas E. Moeser, her obstetrician, and his associate, Dr. John S. Harris. Dr. ⁵²⁷ Moeser concluded that Mrs. Hetrick was suffering from gastroenteritis and possible cholecystitus. An exploratory operation was performed, under general anesthesia, on the morning of September 9, 1978, during which it was discovered that Mrs. Hetrick’s gall bladder was normal but her liver was edemic, indicating severe preeclampsia 1 which had gone undiagnosed by Dr. Moeser for a week or more.

Mrs. Hetrick and her husband, Michael, were informed of Mrs. Hetrick’s condition. The most common treatment for preeclampsia, apparently, is to deliver the child, even though the child will be premature. Mrs. Hetrick agreed to undergo a caesarean section immediately. On the evening of the same day on which the laparotomy was performed, Jason was delivered, eight to nine weeks prematurely, by caesarean section.

He weighed 1531 grams. Mrs. Hetrick met appellee Dr. Weimer, a pediatrician and neonatologist, for the first time in the operating room immediately before the delivery. Mrs. Hetrick testified that he introduced himself and said, “I’m here for the baby.” Mrs. Hetrick also testified that she was not aware that Dr. Weimer had been called in by her own doctors. Jason was born in an extremely poor condition.

He was immediately put under the care of Dr. Weimer, who tried various methods to improve the baby’s cardiopulmonary responses and blood sugar level for the next eight to ten hours. Alleged inadequacy of those measures formed the basis of the negligence action below. Several hours after birth, Jason was transferred to the neonatal intensive care unit at Saint Agnes Hospital in Baltimore to be placed ⁵²⁸ under the care of Dr. Giangreco, another neonatologist. Jason died not long thereafter.

On August 21, 1982, the Hetricks filed a claim with the Health Claims Arbitration Office (HCAO) as the parents of Jason. Jody also filed as the personal representative of Jason’s estate. The claim was filed against Drs. Moeser, Harris, and Weimer, Anne Arundel General Hospital, and Saint Agnes Hospital.

On December 1, 1982, the Hetricks released Dr. Moeser for the consideration of $100,000, executing a Joint Tortfeasor Release. Their claim against Dr. Moeser was dismissed the same day. Two days later, third party claims were filed against Dr. Moeser by Dr. Harris, Dr. Weimer, and Anne Arundel General Hospital. An arbitration panel of the HCAO issued its determination on May 18, 1983.

The panel found “no liability on part of [sic] ... St. Agnes Hospital, Anne Arundel General Hospital, Stanley R. Weimer, M.D., and John S. Harris, M.D., or against anyone other than Thomas E. Moeser, M.D.” The panel awarded damages of $125,000. Because of their release of Dr. Moeser, the Hetricks clearly did not benefit from the panel’s determination. On May 27, 1983, they filed a notice of rejection of the panel’s decision and a declaration and election for jury trial in the Circuit Court for Anne Arundel County, suing Dr. Weimer, Dr. Harris, and Anne Arundel General Hospital for negligence.

On the same day the Hetricks filed two other pleadings, one captioned “Action to Nullify Award” and the other a preliminary motion to vacate the award. Dr. Moeser also filed a motion to vacate the award as. to him. In July of 1983, Dr. Weimer, Dr. Harris, and Anne Arundel General Hospital each filed a general issue plea to the declaration and a third party claim against Dr. Moeser. On November 3, 1983, Dr. Moeser’s motion to vacate the panel’s award against him was granted on the basis that, due to the Hetricks’ release, the panel had no jurisdiction over Dr. Moeser unless the third party plaintiffs were found liable.

Since no one other than Dr. Moeser was held liable, ⁵²⁹ the court granted his motion to vacate. The court denied the Hetricks’ motion to vacate the award in toto. On February 13, 1984, the Hetricks released Dr. Harris in return for approximately $2100. They dismissed their suit against Dr. Harris on February 21, 1984, the first day of trial.

The remaining defendants unsuccessfully sought a continuance, complaining that the release was secret and that it deprived them of the use of Dr. Harris as a witness. Trial commenced before a jury on February 21, 1984. Testifying as an expert witness in neonatology on behalf of the Hetricks was Dr. Kenneth Harkavy. During direct examination, Dr. Harkavy gave his opinion as to the cause of Jason’s death.

He said: Based on the review of all three sets of records, the underlying cause [of Jason’s death] is that of perinatal asphyxia which begins around the time of birth and continued after delivery, compounded by prematurity and hyaline membrane disease. The prematurity in itself prevented the baby from successfully recovering from his difficulties at birth in respiring insufficiency. Dr. Harkavy also said that “[t]he lack of adequate resuscitation I think allowed the asphyxia or lack of oxygen, the buildup of acidosis to continue after birth.” He concluded that “what we’re seeing is that the asphyxia continues and as we’ve already talked about, I think it’s because the baby was not adequately ventilated.” 2 At the close of the Hetricks’ case, Dr. Weimer and Anne Arundel General Hospital each moved for a directed verdict. The court denied Dr. Weimer’s motion but granted the hospital’s motion on the grounds that there was no evidence that Dr. Weimer was its agent and insufficient evidence that the hospital’s nurse was negligent.

The jury returned a verdict in favor of Dr. Weimer. ⁵³⁰ Issues On appeal, the Hetricks contend that the trial court erred in denying their preliminary motion to vacate the panel’s award, that the court erred in granting Anne Arundel General Hospital’s motion for a directed verdict, and that the court committed three errors in instructing the jury. In his cross-appeal, Dr. Weimer argues that the court erred in not permitting him to read in court the deposition testimony of an out-of-state doctor and in striking the transcript from evidence. I. Motion to Vacate Appellants’ first contention is that the court below erred in denying their preliminary motion to vacate the award of the panel. We find no error.

In accordance with Md.Cts. & Jud.Proc.Code Ann. § 3-2A-06(b) (1984), appellants filed a written motion to vacate the award of the panel on the grounds that, inter alia, the panel found against Dr. Moeser, who had already been dismissed by virtue of the agreement reached between the doctor and appellants. Appellants also contended that the panel improperly permitted the filing of third party claims which brought Dr. Moeser back into the controversy. By a written opinion and order dated November 3, 1983, the court denied appellants’ motion, ruling as follows: The claimant also argues that the result of the Panel shows such confusion as to vacate the award. We have already vacated the award against Dr. Moeser.

The remainder of this decision makes it clear that the Panel found no negligence on behalf of anyone else. Plaintiff tells us that the Panel wanted to give Plaintiffs some award; it did, but obviously only against Dr. Moeser. If the Panel had found only Dr. Moeser liable, then announced that he had been released, we would let the finding stand. Since we hold the award against Dr. Moeser as surplusage at this point, we allow it to stand.

On appeal, the Hetricks argue that the panel was “either incompetent or totally confused” and that the award was ⁵³¹ completely irrational. They rely on O-S Corporation v. Samuel A. Kroll, Incorporated, 29 Md.App. 406 , 348 A.2d 870 (1975), cert. denied, 277 Md. 740 (1976), which they contend states that an arbitration award may be set aside if it is completely irrational. O-S Corp. narrowly dealt with an arbitrator’s interpretation of a construction contract, but it does express the generally accepted rule that a completely irrational arbitration award may be vacated by a court, because in making such an award arbitrators would be exceeding their powers and employing undue means, two of the limited grounds upon which a court may vacate an arbitration award. Md.Cts. & Jud.Proc.Code Ann. § 3-224(b) (1984). 3 The award in this case, however, clearly does not fall into the category of “completely irrational.” It is true that the panel entered an award against Dr. Moeser unnecessarily; but as the court quite aptly observed, that award was mere surplusage.

Its presence simply does not connote arbitrary or irrational judgment by the panel members. Appellants argue that since Dr. Moeser had already been dismissed the award against him shows the panel’s complete lack of understanding of the case. We disagree. Although Dr. Moeser had been dismissed by appellants, he had been brought back in as a third party defendant.

While ⁵³² it is true that the award against him is meaningless without liability attaching to the remaining defendants (third party plaintiffs), the panel award amounts to no more than a finding that Dr. Moeser, and only Dr. Moeser, was “at fault.” That finding does not come under the category of “completely irrational.” Nor can it be said that any panel member exceeded his authority by rendering an arbitrary result, as proscribed in Prince George’s County Educators’ Association, Inc. v. Board of Education of Prince George’s County, 61 Md.App. 249 , 486 A.2d 228 , cert. granted, 303 Md. 114 , 492 A.2d 616 (1985).

II

Motion for Directed Verdict Appellants next contend that the court below erred in granting Anne Arundel General Hospital’s motion for directed verdict. The hospital made its motion at the close of appellants’ case, and the judge granted it after hearing from both sides. Appellants maintain that there was sufficient evidence to allow the jury to consider the hospital’s liability due to the acts of one of its nurses and because Dr. Weimer was the hospital’s agent. We disagree.

In order to find the hospital liable for any negligent acts of Dr. Weimer, the jury would have to conclude that Dr. Weimer was the hospital’s agent. There was no evidence that Dr. Weimer was in the employ of the hospital or had had actual or express authority to act on its behalf. It was Dr. Harris, not the hospital, who brought in Dr. Weimer to care for Jason. Nor did appellants present any evidence that would support the theory that Dr. Weimer had apparent authority to act as an agent for the hospital.

One party may be held liable, as a principal, for acts of another party when the purported principal has, by words or deeds, induced a third party to believe that the purported agent is acting on behalf of the purported principal. The principal-agent relationship is created, therefore, only if a third party has been misled by and relies upon the apparent authority of the supposed ⁵³³ agent. “Apparent authority results from certain acts or manifestations by the alleged principal to a third party leading the third party to believe that an agent had authority to act.” Klein v. Weiss, 284 Md. 36, 61 , 395 A.2d 126 (1978) (emphasis added). Succinctly stated, apparent authority to do an act is created as to a third person, by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him. Parker v. Junior Press Printing Services, Inc., 266 Md. 721, 727-28 , 296 A.2d 377 (1972) (emphasis added).

To be liable to appellants for the acts or defaults of Dr. Weimer, Anne Arundel General Hospital, and not Dr. Weimer, would have to have said or done something to cause Mrs. Hetrick to believe that Dr. Weimer was the hospital’s agent. There was simply no evidence of any words or conduct on the part of the hospital that could have induced such a belief. 4 On direct examination Mrs. Hetrick testified that, to her knowledge, Dr. Weimer came from Anne Arundel General Hospital. She said that she “was on the operating table and there was [sic] a lot of things going on but he came up and he said, ‘Hello, I’m Dr. Weimer. I’m going to be here for the baby.’ ” On cross-examination, she testified that she never chose a pediatrician.

Dr. Harris had given her a list of names but she made no selection because she assumed she had plenty of time to do so. That was the sum total of the evidence to support appellant’s claim that the hospital was liable for Dr. Weimer’s conduct. It was clearly inadequate for that purpose. ⁵³⁴ Appellants' reliance upon Mehlman v. Powell, 281 Md. 269 , 378 A.2d 1121 (1977), is misplaced. In Mehlman , the decedent went to the emergency room of Holy Cross Hospital.

The attending physician in the emergency room made a faulty diagnosis, as a result of which the decedent was sent home, where he died. When the decedent’s widow and children sued, the hospital contended that the emergency room was completely controlled and operated by an independent contractor and thus the negligent physician was not an agent of the hospital. The Court of Appeals disagreed with that contention, holding that under the circumstances the decedent was led to believe that he was submitting himself to the care of the hospital and its personnel. The case sub judice is easily distinguishable from Mehlman .

Mrs. Hetrick did not go to Anne Arundel General Hospital to seek the services of a pediatrician, and there were no surrounding circumstances to indicate that the hospital was supplying pediatric services. Mrs. Hetrick may have assumed that Dr. Weimer was “from the hospital,” but not on the basis of anything the hospital did to foster that belief. In Mehlman , however, the Court noted that Holy Cross Hospital “is engaged in the business of providing health care services. One enters a hospital for no other reason.

When [the decedent] made the decision to go to Holy Cross Hospital, he obviously desired medical services and equally obviously was relying on Holy Cross Hospital to provide them.” 281 Md. at 274 , 378 A.2d 1121 (emphasis added). As the Court explained, “[A]ll appearances suggested] and all ordinary expectations [were] that the Hospital emergency room, physically a part of the Hospital, was in fact an integral part of the institution.” Id. In short, Holy Cross Hospital held out the emergency room and its personnel as a part of the Hospital. That was not the case here.

The nurse who attended Jason, on the other hand, was an employee of the hospital. But there was a failure to prove actionable negligence on her part. There was evi ⁵³⁵ dence that the nurse failed to record the results of blood sugar tests as ordered by the doctor, from which a logical inference could be drawn that she failed to perform the tests and therefore failed to follow the attending physician’s orders, which would have been a breach of her duty in caring for the infant. Breach of duty, however, is but one element of actionable negligence.

That breach must be shown to have been the proximate cause of the injury for which suit is brought, and there was no evidence from which the jury could reasonably have found such a causal connection. Indeed, there was no attempt on the part of any of appellants’ witnesses to link the failure to test hourly for blood sugar to the infant’s failure to survive. We hold, therefore, that the court did not err in granting the hospital’s motion for directed verdict.

III

Instructions Appellants argue that the court committed three errors in instructing the jury; first by instructing that Dr. Weimer was presumed to have performed his medical duties with care and skill, second by instructing improperly on burden of proof, and third by refusing to give an instruction consistent with the holding of Thomas v. Corso, 265 Md. 84 , 288 A.2d 379 (1972). A. Presumption In the course of instructing the jury, the trial judge said, “Now the law presumes that Dr. Weimer, the pediatrician in this case performed his medical duties with care and skill.” Shortly thereafter he added: “The law doesn’t require that treatments given by a doctor to a patient be nearly perfect or attain perfect results. The doctor is not responsible for lack of success or an honest mistake or exercising judgment even if hindsight shows a different course of action would have been preferable.” Appellants’ counsel admits that he let the “honest mistake” instruction slip past without objecting to it but argues that we should read the instructions as a whole in reviewing their propriety. ⁵³⁶ Appellants are correct in asserting that the use of the word “presumed” was in contravention of our opinion in Riffey v. Tonder, 36 Md.App. 633 , 375 A.2d 1138 (1977). In Riffey , the trial judge told the jury, “You are instructed that the law presumes, in the absence of evidence to the contrary, that a physician and a hospital has [sic] performed their respective duties with the required degree of care and skill.” Id. at 648 , 375 A.2d 1138 (emphasis in original).

That instruction is quite similar to the one given in this case. In Riffey we expressed displeasure over the use of the term “presume” and warned that “we eschew the continued use of the term in describing the burden of proof in medical malpractice actions.” Id. at 650 , 375 A.2d 1138 . In Riffey , however, we were satisfied that the instructions taken as a whole did not improperly describe the burden of proof to be borne by plaintiffs. Id.

Similarly, although the instruction at issue ignored our disapproval of the word “presume,” we find that the instructions as a whole properly described appellants’ burden of proof. Immediately after the offending comment, the trial judge continued: Now the