Hunt v. Mercy Medical Center

THIEME, Judge. The issue presented in this case is whether emotional distress from being misdiagnosed with cancer is compensable within the physical injury rule. On the facts presented, we hasten to answer yes. Charles Dell’uomo initiated a medical malpractice action before the Maryland Health Claims Arbitration Office after he was misdiagnosed as having prostate cancer and received several radiation treatments.

He brought the action against four health care providers, including the present appellees, Victor A. Fazekas, M.D., and Mercy Medical Center. 1 Mr. Dell’uomo died of essentially unrelated causes prior to the hearing before the arbitration panel. In his place was substituted the personal representative of his estate, appellant Carol ⁵²¹ Sue Hunt. The arbitration panel found no liability and issued an award in favor of all health care providers on 31 July 1996. On 13 August 1996, appellant notified the Arbitration Office that she rejected the award.

She filed a complaint and an action to nullify the award in the Circuit Court for Baltimore City. She requested a jury trial. The other two health care providers besides appellees were dismissed from the case by stipulation on 22 October 1996. Dr. Fazekas filed a motion for dismissal or, in the alternative, summary judgment.

Mercy Medical Center filed a motion for summary judgment. These motions were the subject of a hearing on 18 July 1997. The circuit court granted Dr. Fazekas’s motion on the day of the hearing and granted Mercy Medical Center’s motion on 4 August 1997. This appeal timely followed.

The issues presented for review are: I. Whether appellant was required to prove the decedent’s emotional injuries through expert testimony.

II

Whether Dr. Fazekas was an agent of Mercy Medical Center for purposes of liability. As explained below, we must reverse as to each issue. FACTS Upon the advice of urologist Stanley B. Silber, M.D., Mr. Dell’uomo submitted to a biopsy of his prostate at Mercy Medical Center in Baltimore on 9 March 1995. At that time, Mr. Dell’uomo was seventy-eight years of age.

The specimen was submitted to the pathology department at Mercy. On the next day Dr. Fazekas recorded his diagnosis that Mr. Dell’uomo was suffering from a form of cancer. 2 On 15 March 1995, Mr. Dell’uomo returned to Dr. Silber’s offices at Mercy, where Dr. Silber informed him that he had a relatively minor form of prostate cancer and that radiation treatment would be necessary. ⁵²² Dr. Silber referred Mr. Dell’uomo to the Department of Radiation Oncology at Mercy for further consultation, and decisions were made to proceed with radiation treatment. On the 10th, 11th, and 17th of April, Mr. Dell’uomo met with radiation oncologists at Mercy to sign consent forms and to discuss his condition, the treatment, and the potential effects of each. The form signed on the 17th contained his acknowledgment: That radiation therapy will have side effects which may occur during and immediately after treatment (“acute side effects”) or later (“chronic” or “delayed” side effects), and which occur because radiation therapy affects normal tissue, and can damage normal tissues as well as cancerous tissues.

Among the acute side effects of the proposed treatment that have been described to me are: skin irritation; low blood counts; fatigue; urinary frequency; diarrhea; rectal irritation. Among the chronic side effects of the proposed treatment that have been described to me are: damage to bowel or bladder. I understand that no list of possible complications can be complete. Mr. Dell’uomo was to be exposed to the radiation over approximately thirty-two separately administered treatments.

Radiation treatment began on April 17th. Fifteen separate radiation treatments were administered over the following three weeks before the misdiagnosis was discovered and communicated to Mr. Dell’uomo on May 8th. Left with hagridden doubts about what to believe, Mr. Dell’uomo sought the advice of Horst K.A. Schirmer, M.D., another urologist. At a meeting on May 15th, Dr. Schirmer informed Mr. Dell’uomo that the total amount of radiation administered was small enough that he was unlikely to suffer any side effects related to it.

He also advised Mr. Dell’uomo to have another biopsy performed to confirm the negative diagnosis. Although frustrated, Mr. Dell’uomo did reluctantly submit to another biopsy. The result confirmed that he did not have prostate cancer. Mr. Dell’uomo died in the spring of 1996 of causes that are not revealed in the record extract and are concededly not ⁵²³ relevant to this appeal.

Appellant then substituted for Mr. Dell’uomo in her capacity as personal representative of his estate. At the arbitration hearing, appellant described her relationship to the deceased as “Companion.” Dr. Fazekas admitted his breach of the applicable standard of care in proceedings before the arbitration panel. The panel, nonetheless, ruled in favor of all the health care providers for reasons that are not reflected in the record extract. Before the circuit court, both appellees filed dispositive pretrial motions.

Dr. Fazekas moved for dismissal or, in the alternative, for summary judgment. Dr. Fazekas argued that Mr. Dell’uomo suffered no compensable injury under the “physical injury” rule and that appellant failed to arbitrate in good faith by presenting no expert medical testimony. Mercy Medical Center made a motion for summary judgment on these two grounds plus the additional ground that it was not vicariously liable for Dr. Fazekas’s alleged medical malpractice. The focus of oral arguments, presented at a hearing on 18 July 1997, was the need for expert testimony and the meaning of “good faith” arbitration.

Dr. Fazekas’s and Mercy Medical Center’s motions for summary judgment were granted by orders that did not specify their particular rationales. Further facts will be added where appropriate for our discussion. DISCUSSION I. Expert testimony. In reviewing a grant of summary judgment, we generally do not consider any issues but those decided below and will not affirm on any alternate grounds.

Henley v. Prince George’s County, 305 Md. 320, 333 , 503 A.2d 1333 (1986). This presents the question of what issues actually were decided below and, hence, what issues are now before us. Appellant frames the issue before us as whether expert testimony was required in order to prove the decedent’s emotional injuries. Mercy Medical Center and Dr. Fazekas each argue in favor of affirming the lower court based on this same issue and on the additional grounds that the deceased suffered no cognizable ⁵²⁴ physical injury and that appellant’s failure to present expert testimony constituted a failure to arbitrate in good faith.

All three of these issues were presented to the court below, but the court’s orders, lacking its reasoning, are non-specific. The transcript of the hearing before the circuit court, however, reveals the court found that appellant’s failure to present expert testimony constituted a failure to arbitrate in good faith. Since this ruling is premised upon the necessity to present expert testimony, and since expert testimony would be a moot point unless the injuries it pertains to are cognizable, we consider all three issues to be properly before us. -cognizability- Although appellant may once have claimed the right to recover for both physical and emotional injuries arising from the negligent misdiagnosis, appellant is arguing only in support of damages for Mr. Dell’uomo’s emotional injuries. Any claims for damages from purely physical injuries resulting from the misdiagnosis are waived.

Within the field of negligence law, the rule in Maryland is that any “physical injury” is compensable if that injury is “capable of objective determination.” Belcher v. T. Rowe Price Found., Inc., 329 Md. 709, 734 , 621 A.2d 872 (1993) (quoting Vance v. Vance, 286 Md. 490, 500 , 408 A.2d 728 (1979)). The adoption and development of this rule is recounted in detail both in Belcher, 329 Md. at 722-36 , 621 A.2d 872 , and in Vance, 286 Md. at 495-501 , 408 A.2d 728 . In brief, the Court of Appeals in 1909 rejected the traditional rule that there could be no recovery absent a “physical impact” and adopted the “modern rule” permitting recovery for any “physical injury ” arising out of the defendant’s negligence, regardless of physical impact. Green v. Shoemaker, 111 Md. 69, 83 , 73 A. 688 (1909).

In the context of this rule, however, the term “physical” carries a meaning that may differ from the common understanding or the dictionary definition of the term. Vance, 286 Md. at 500 , 408 A.2d 728 . A compensable “physical injury” may be demonstrated simply by evidence of a distressed mental state. Id.

Therefore, although we may ⁵²⁵ casually characterize a purported injury as being either physical or emotional in nature (as we will in our ensuing discussion), the distinction is merely descriptive and not of legal significance. The doctrinally correct position is that an emotional injury (such as mental anguish or emotional distress) may come within the ambit of the “physical injury” rule by virtue of its outward manifestations. 3 The only limitation on recovery for an emotional injury, imposed to guard against feigned claims, is that the injury must be “capable of objective determination.” 4 Id. To better understand what is, and is not, a compensable injury, we examine precedent. In the seminal Green case, the ⁵²⁶ defendants were blasting rocks in the vicinity of the plaintiff’s residence, causing substantial damage to the house, as well as objects within.

On one occasion, the blast broke every window in the plaintiff’s room and overturned her furniture. On another occasion, a 22-pound stone crashed through the ceiling and landed on the plaintiffs bed. The Court noted that the blasting lasted from April through the fall and that the plaintiff, as well as other occupants of the house, “often had to leave their meals and run to the cellar, and were in terror all night of being killed.” 111 Md. at 73 , 73 A. 688 . The plaintiff also “stayed up all night in a chair for the better part of six weeks while they were blasting across the river.” Id.

The plaintiff testified, my nerves were completely broken down through fright, and I was not able to do my work. Before that time I was in ordinary health, and never was nervous. Since then I have had no health at all. Dr. Miller attended me for this nervousness, and he came every day during the latter part of April, and after that every week or so until fall.

Id. Dr. Miller testified that the plaintiff developed “nervous prostration” as a result of the blasting, id., and her husband testified that she had become “a nervous wreck,” who, as a result, was unable to attend to “her household duties” for the first time in their marriage. Id. at 74 , 73 A. 688 . The Court found that the issue of her recovery for damages could be submitted to the jury, as she had shown “a material physical injury” resulting from her fright.

Id. at 77 , 73 A. 688 . The Court of Appeals applied Green in three subsequent cases that, for differing reasons, are of little assistance to us. Great Atlantic & Pacific Tea Co. v. Roch, 160 Md. 189 , 153 A. 22 (1931); Patapsco Loan Co. v. Hobbs, 129 Md. 9 , 98 A. 239 (1916); Baltimore & Ohio R.R. Co. v. Harris, 121 Md. 254 , 88 A. 282 (1913). In Harris , the plaintiff was crossing a street in front of a stopped train when a loud blast of the train whistle and a sudden escape of steam so startled her that she fainted. ⁵²⁷ As she fell, her jaw struck the train track and was seriously-injured.

The Court of Appeals permitted recovery for the injury to her jaw by application of Green , but it appears from the Court’s treatment of the evidence that the plaintiff never sought compensation for the emotional aspects of her injury. 121 Md. at 268-71 , 88 A. 282 . In Hobbs , the plaintiff was in bed recovering from a uterinary operation when an agent of the defendant loan company came into her bedroom and accosted her regarding a loan payment. She was so greatly upset that she endured fainting spells and episodes of delirium, resulting in convulsions that undid the effects of her operation and necessitated a repeat procedure. Although there is much discussion of the plaintiffs mental state, the Court’s disposition of the case never makes clear whether her mental state was compensable or whether it merely established causation. 129 Md. at 15-16 , 98 A. 289 .

In Roch , the plaintiff sought to recover for injuries sustained when she opened a package expecting to find the loaf of bread she had ordered but instead found a dead rat, whereupon she fainted. Her declaration alleged both physical and mental injuries, and the Court of Appeals stated that the evidence supported a conclusion that “she became a ‘nervous wreck.’ ” 160 Md. at 192 , 153 A. 22 . Although that evidence is described as “ample,” the Court’s opinion recounts none of it. Id.

Bowman v. Williams, 164 Md. 397 , 165 A. 182 (1933), was for many decades the polestar in the area of emotional distress. The plaintiff, William Williams, watched from the first-floor window of his house as a large truck, loaded with coal and driven by the defendant’s agents, lost control down a steep and icy hill and crashed into his house at a point directly beneath his window. The truck crashed through the stone foundation and into the basement room where his two young boys were playing. The boys were unharmed, and the violent impact did not even cause the plaintiff to lose his balance.

Nevertheless, the fright he experienced during the brief ordeal out of concern for his own safety and that of his children had a lasting impact. The Court’s primary focus was on rejecting the defendant’s contention that one may not recover ⁵²⁸ based on fright for the safety of another, but the Court did give a reasonably detailed description of the evidence presented regarding the emotional injury. The fright of the plaintiff and his alarm for the safety of his two young sons occasioned by this accident were, however, such a shock to his nervous system that he fell to the floor of the dining room immediately after the impact of the truck with the fabric of the house, and was carried into the kitchen in weak and hysterical condition. The doctor was sent for, and the plaintiff remained in bed for two weeks under regular medical treatment.

From a state of normal health, the plaintiff immediately became and continued quite weak and nervous, as was manifested to his family physician and an expert consultant in nervous disorders, by tangible evidence not susceptible of simulation, and by the absence of any physical reason for his condition. He was unable to work for six months, and after that period the testimony is that his condition gradually improved and is now about normal. Id. at 399 , 165 A. 182 . Neither the defendant nor the Court questioned the sufficiency of this evidence to demonstrate a compensable injury.

Vance is now the definitive installment in this line of cases. See Belcher, 329 Md. at 733 , 621 A.2d 872 . The plaintiff, Muriel Vance, brought a suit for negligent misrepresentation against her husband, Arnold Vance, or, rather, the man she believed was her lawful husband during their “marriage” of almost twenty years. Arnold discovered approximately one month after their wedding ceremony in 1956 that his prior divorce had not become final until about two and one-half weeks after that ceremony, but he did not disclose this information until he brought an action to annul the marriage •sometime after February 1974.

In the meantime, the couple had raised two children. The evidence of Muriel’s emotional distress was set forth in detail. Her mother testified that Muriel “was in a state of emotional collapse” after Arnold filed for annulment. 286 Md. at 493 , 408 A.2d 728 . Muriel testified as follows: ⁵²⁹ I just — I couldn’t function, I couldn’t sleep, I was totally embarrassed by the fact that he had filed this and it became public knowledge, once it’s filed.

I consider it defamation of my character. I was too embarrassed to go out and socialize with people that tried to be kind to me. And I just couldn’t function. I really thought I was going to have a nervous breakdown.

And I even now have symptoms of an ulcer. Id. Muriel’s son by a former marriage testified that in the days following her discovery that the marriage was void, he was frightened by his mother’s emotional depression. He said that he had great difficulty communicating with her because she appeared detached, unaware of her own presence, and she spent long periods of time crying and sobbing.

He described how her physical appearance changed from that of a beautiful woman to that of “a wreck,” with unkept hair, sunken cheeks, and dark eyes. Id. at 494 , 408 A.2d 728 . He even feared she would end up in an asylum. Based on all this, the Court concluded that there was sufficient evidence to come within the meaning of “physical injury,” explicitly defined for the first time as meaning injury “capable of objective determination.” Id. at 500 , 408 A.2d 728 .

Subsequently, this Court had the opportunity to address this same issue in New Summit Assocs. v. Nistle, 73 Md.App. 351 , 533 A.2d 1350 (1987). In that case the, plaintiff established that her landlord was negligent in failing to warn her of the latent defect of peepholes scratched in her bathroom mirror by workmen next door. The landlord claimed on appeal that Ms. Nistle had suffered no compensable injury. We disagreed, and in affirming said, “Appellee’s nervous shock, resulting in nausea, diarrhea, and an inability to sleep, was therefore a compensable injury____” Id. at 362-63 , 533 A.2d 1350 .

There is no indication from our opinion that anyone other than the plaintiff herself had testified regarding these effects of her nervous shock. Not every claim for mental anguish, however, is successful. Most notably, in Roebuck v. Steuart, 76 Md.App. 298 , 544 A.2d 808 (1988), this Court found that the plaintiff/appellant had not ⁵³⁰ produced sufficient evidence to create a jury issue regarding her mental anguish arising from an attorney’s malpractice. The sole evidence of mental anguish consisted of the following testimony: I went to see Dr. Rendler who is a psychologist I had seen once before a couple years after I moved in with my mother and realized there was nothing left and John was falling apart.

There was no house. I went to see him about six times. Id. at 315 , 544 A.2d 808 . We considered this evidence to be clearly inadequate, and we noted, “The psychologist did not testify and Roebuck did not testify as to any symptoms, counseling or treatment.” Id.

In fact, we considered the evidence to be so inadequate that it did not even amount to a “feigned claim” of mental anguish. Id. at 316 , 544 A.2d 808 . Most recently, in Bagwell v. Peninsula Reg. Med.

Ctr., 106 Md.App. 470 , 665 A.2d 297 (1995), we rejected a claim of mental anguish in a holding that may suffer for being dicta. A former police officer had sued the hospital that terminated his employment after he struck a patient during an emergency room altercation. The lower court granted judgment in favor of the defendant hospital on Bagwell’s only negligence count, wherein Bagwell had alleged that his discharge caused him emotional and mental distress. We first held that any issue regarding this count was not properly before us, since Bagwell had not presented any arguments at all in support of that claim of error.

Id. at 517 , 665 A.2d 297 . We then commented that, “[ejven if we were to consider the merits of this claim,” the count alleged nothing more than negligent infliction of emotional distress, which is not recognized as an independent cause of action in this State. Id. Only then did we continue even further into the fray and “hold” that there was insufficient evidence of mental anguish presented to render the injury capable of objective determination.

Id. at 518 , 665 A.2d 297 . That evidence consisted solely of Bagwell’s deposition testimony, which we summarized as establishing only that “appellant was in ‘total shock,’ became severely depressed, ⁵³¹ had difficulty sleeping, became introverted, lost his appetite, and was embarrassed to go out in public.” Id. We distill three generalizations from the foregoing case law before turning to the facts of the instant appeal. First, in order for an injury to be capable of objective determination, the evidence must contain more than mere conclusory statements, such as, “He was afraid,” or, “I could see that he was afraid.” The evidence must be detailed enough to give the jury a basis upon which to quantify the injury.

Second, a claim of emotional injury is less likely to succeed if the victim is the sole source of all evidence of emotional injury, as Bagwell demonstrates. This phenomenon may be a purposeful bulwark against feigned claims or it may simply flow from the need for objective rather than subjective determinations. It need not be an absolute bar to recovery, however, as New Summit seems to demonstrate. There is no reason why the victim’s own testimony may not be sufficient, as long as it otherwise provides the jury with enough information to render his or her injuries capable of objective determination.

Third, although minor emotional injuries may be less likely to produce the kind of evidence that renders an injury capable of objective determination, that does not mean that an emotional injury must reach a certain threshold level of severity before it becomes compensable. There is no severity prong of the Vance test. Our focus thus is properly on the evidence of mental anguish produced and not on the nature of the act causing the injury, the foreseeability of mental anguish therefrom, nor on the likely severity of such foreseeable anguish. It also follows, therefore, that if two people experience an identical shock and suffer identical levels of resulting emotional distress, it is entirely possible that only one would exhibit objectively determinable manifestations of that injury.

Given that this appeal is from a grant of summary judgment, we must view all of the evidence in the light most favorable to appellant. Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 43 , 656 A.2d 307 (1995). The evidence of Mr. Dell’uomo’s emotional distress arises from three sources.

The ⁵³² first of these sources is the deposition of Dr. Schirmer, whom Mr. Dell’uomo visited after learning that his diagnosis of cancer was erroneous. The relevant portions of Dr. Schirmer’s testimony are as follows: A. Mr. Dellwuomo was not a man of many words. He was very upset, he was very skeptical, and it took me a great deal of time and persuasion that he will need [a] further biopsy and examination in order to assess what is correct and what isn’t correct. He expressed to me at the time that why should he believe this if now he’s told that there is no cancer, when he’s been told before there was cancer?

Of course, he had a point. But I said, “Well, Mr. DelP-Hiomo, you come here to seek the truth, and I’m doing my best to create answers to what is at issue, and I’m sorry to say, but this is the only way we can do it.” This discussion extended for — which is unusual for me — for almost an hour, until he finally conceded that he will do so. Q. Do you recall anything else that was said by either he or Ms. Hunt at that conversation? A. I think that’s the sum total of it.

I think it has to do with — well, that, one, he was emotionally upset and he was very skeptical. This evidence alone is not sufficient to demonstrate any mental injury that is capable of objective determination. The only references to emotional distress are the simple, unadorned statements that Mr. Dell’uomo was upset. This provides no information useful to a jury for setting a level of damages and does not satisfy the Vance test.

Most of Dr. Schirmer’s testimony relates to Mr. Dell’uomo’s skepticism. We do not consider skepticism to be a form of mental or emotional ipjury. Skepticism connotes a higher level of cognitive function rather than an injury. Appellant appears to concede this, but she argues that Dr. Schirmer’s testimony shows how scared and confused Mr. Dell’uomo must have ⁵³³ been, to have needed such a long period of persuasion to agree to trust another doctor with a diagnostic test.

Although this explanation is closer to the mark, the above testimony alone is too indirect to render such fear and confusion capable of objective determination, especially since all direct references are to mere skepticism. The second source is Mr. Dell’uomo himself. Mr. Dell’uomo died prior to the arbitration hearing but not before sitting for a deposition that was introduced at the arbitration hearing. As Dr. Sehirmer noted, Mr. Deiruomo proved to be a man of few words.

His testimony regarding his own condition was characterized by short, conclusory statements of his basic emotional state. It tended to lack the detail required to render that emotional state capable of objective determination. The following excerpts are typical of his testimony. They represent most of his statements in the record extract regarding emotional distress: Q. How would you describe your health today?

A. Well, I tell you, I’m really — I’m concerned, I’m worried you know what I mean, I’m worried and I think about what could have happened or what’s going to happen. And I’m, you know, I don’t sleep at night. I can’t believe what happened to me, you know. Q. Let me ask you this way.

I’m asking about your physical health, how would you describe your physical health today? A. Well, all right, okay. And the frustration, you know. Q. Was it your understanding that if you went through the radiation you’d have a good chance of being cured of the cancer?

A. No. See, believe me, when I started radiation treatment, I was scared, I thought that was it, you know what I mean, I thought — I thought I was going to die, I mean. ⁵³⁴ Q. Did you understand that it might get rid of the cancer? A. I was hoping it would but it wasn’t in my mind that way, you know what I mean, you know, I thought the worst. Q. Any other physical problems that you’ve experienced since May of 1995? A. Well, no, but just the stress and the aggravation and the worrying about it you know____ Q. Can you tell me, sir, how being diagnosed with cancer and then having the diagnosis changed back again and receiving the radiation, can you tell me how that’s affected you mentally and psychologically?

A. Well, I say it affected me a lot because, I mean, I think about it, you know, I worry about it, and I’m scared. These statements are just as deficient as the deposition statements made in Bagwell.' Some other aspects of Mr. Dell’uomo’s testimony, however, did describe more specific manifestations of his emotional distress, such as fatigue, sleeplessness, and constipation: Q. And the problems you had with your bowels, whát problem did you have? Did you become constipated? A. Yeah, I was constipated, right.

Q. And how long did you experience that? A. About a week, a week. Q. Did getting the radiation, did it cause you any problems in being able to do anything around the house? A. Yeah.

I got tired, I get tired more than before I had— before I had the radiation, you know, it wasn’t nothing for me to walk uptown without stopping. Now I got to, just to go down to Inner Harbor, I’ve got to stop two or three times. ⁵³⁵ Q. And I believe you told Mr. Barley that you were having sleepless nights. A. Yes, very, very sleepless nights, very sleepless nights. Q. How often does that happen, sir, when you don’t sleep at night?

A. Every night. I get so mad at people sleeping and I’m awake walking the floor. Q. Did that happen last night? A. Yeah, last night too. 1 had to be here and all night I was awake.

Q. Does that happen on a regular basis ever since you’ve had this? A. Yeah, regular basis. Q. So it happens every night? A. Every night, every night.

Q. How much sleep have you gotten per night since you had this radiation? A. Well, I tell you, I don’t get much sleep at night. During the day, I might take catnaps, sitting down, catnap. Q. Mr. Defl’uomo, you mentioned these sleep problems that you had.

Did you have these problems before May of 1995? A. No, no. I’m a heavy sleeper. These details regarding the duration of the constipation, the types of activities with which the fatigue interfered, and the incessant nature of the sleeplessness would give a jury at least some of the information necessary for quantifying a level of damages attributable to his mental injury.