Johns Hopkins Hospital v. Pepper

KARWACKI, Judge. This medical malpractice action requires us to apply our holding in Garay v. Overholtzer, 332 Md. 339 , 631 A.2d 429 (1993). In Garay , we concluded that a negligently-injured ⁶⁸⁴ minor child may make a claim for medical expenses in his or her own name if, inter alia, the parents of the child are unable to meet those expenses. We are specifically asked whether the minor plaintiff in the case sub judice made a sufficient proffer of evidence to have the jury consider his claim for premajority medical expenses.

Being convinced that he did, we shall affirm the judgment of the Court of Special Appeals. I. Travis Pepper was bom on January 6, 1987, at Easton Memorial Hospital suffering from certain genetic disorders which manifested themselves, in part, in a condition medically described as “Tetralogy of Fallot” with pulmonary atresia. In laymen’s terms, Travis suffered at birth from both heart and lung abnormalities. During formation, his heart developed a septal defect allowing blood to flow between the right and left ventricles.

Compounding the problem was a portal restriction between Travis’s heart and pulmonary artery. Both conditions conspired to send unoxygenated blood to Travis’s aorta. See generally Merk Manual of Diagnosis and Therapy, Ch. 190, 2059 (Robert Berkow, M.D., et al., eds.1992); Dorland’s Illustrated Medical Dictionary 156 (28th Ed.1994). The physicians attending Travis determined that the appropriate course of action was to transport-him to Johns Hopkins Hospital (“Hopkins”).

Hopkins surgeons concluded that Travis’s condition would be treated best by two separate surgical procedures—the first to correct the blood flow problem between his heart and pulmonary artery and the second to repair the hole in his ventricular septum. In April of 1987, four-month-old Travis underwent the first of the proposed operations. Travis’s surgery met with post-operative complications, ultimately leading to cardiac arrest. Though doctors were able to revive Travis, severe neurological impairment followed from the resultant oxygen deprivation.

The second proposed corrective procedure was never performed. ⁶⁸⁵ Approximately eight months later, Travis’s parents contacted an attorney who solicited from Hopkins all hospital records relating to Travis’s surgery. A subsequent four year period of silence followed from the Peppers. That silence was broken when Terry and Linda Pepper 1 and Travis, through his parents and next friends, filed suit against Hopkins on March 23, 1993. 2 Count I of the Peppers’ six-count complaint, which claimed damages on behalf of Travis individually, alleged that Hopkins, through its employees, negligently failed to treat Travis’s condition as non-emergent, negligently failed to undertake alternative and “less risky” modes of treatment, negligently performed surgery upon Travis when his age and health status rendered such surgery inadvisable, and otherwise failed to use reasonable and ordinary care in Travis’s overall treatment. Counts II and III of the Complaint likewise sounded in negligence but were actions brought by, respectively, Linda and Terry Pepper individually, for inter alia, recovery of medical expenses.

Counts IV and V brought on behalf of Travis, and by Terry and Linda Pepper, essentially alleged that Hopkins failed to adequately inform the Peppers of the risks attendant to Travis’s surgery. Count VI 3 of the Complaint was a loss of consortium claim brought by Terry and Linda Pepper. Raising limitations pre-trial in a summary judgment motion, Hopkins successfully argued that Linda and Terry Peppers’ claims were time-barred since any cause of action in their favor arose six years previously, and that their suit was filed three years beyond the applicable limitations period. See ⁶⁸⁶ Md.Code (1989, 1994 Supp.), § 5-101 of the Courts & Judicial Proceedings Article.

Thus, only Travis’s claims of negligent care and lack of informed consent survived partial summary judgment, which was entered in Hopkins’s favor on August 2, 1993. All discovery in the case ceased on December 2, 1993. The Peppers submitted their pretrial memorandum on March 9, 1994. Section 3 of that document was captioned “AMENDMENTS REQUIRED OF PLEADINGS .” The word “None” followed the caption.

Nevertheless, the Peppers filed a First Amended Complaint on June 13, 1994, adding to Travis’s original claim of negligence the allegation that, inter alia, “Terry and Linda Pepper [ ] are financially unable to provide for the past and future care and treatment Travis will require and need____” Contemporaneous with the filing of their amended complaint, Terry and Linda Pepper also filed a Motion for Reconsideration of the court’s dismissal of Counts II and III of their original Complaint. The court denied the motion, and in response to Hopkins’s argument, struck the Amended Complaint as untimely. On the first day of trial, Hopkins moved in limine to exclude any evidence concerning medical expenses incurred either by Travis Pepper or his parents. In Hopkins’s view, under our holding in Garay, supra, a claim for pre-majority medical expenses belongs solely to the parents of an injured child.

Since Terry and Linda Pepper lost their parental claims for medical expenses by operation of limitations, Travis’s pre-majority medical expenses had no relevancy at trial. Pointing to Travis’s profound and permanent dependency on others for his care, Hopkins similarly argued that since Maryland law charges parents with an obligation to support an incapacitated and unemancipated adult child, Travis will never be able to assert a claim for medical expenses in his own name, pre or post majority. Although the Peppers conceded that a claim for pre-majority medical expenses ordinarily belongs to the parents of an injured child, they pointed out that Garay recognized four ⁶⁸⁷ circumstances in which minors could recover such expenses in their own right and that at least two of those exceptions applied in the case sub judice. The trial court rejected those assertions and granted Hopkins’s motion in limine.

The case thus proceeded to trial on Hopkins’s alleged negligence and Travis’s damages, limited as they were by the trial court’s ruling to his lost future income and non-economic damages. The jury returned a verdict in Travis’s favor for non-economic damages in the amount of $750,000. 4 That figure was subsequently reduced to $350,000 pursuant to Md.Code (1989 Repl.Vol., 1993 Supp.), § 11-108 of the Courts & Judicial Proceedings Article. The jury did not, however, award Travis Pepper damages for lost future earnings, concluding, in response to a special verdict, that Travis would not survive to the age of gainful employment. The Peppers filed a timely appeal to the Court of Special Appeals claiming, inter alia, that the trial court erroneously granted Hopkins’s motion in limine, when they had otherwise proffered sufficient evidence concerning their inability to pay the bulk of Travis’s medical expenses.

The intermediate appellate court agreed and remanded the case to the Circuit Court for Baltimore City for a new trial on the amount of damages, “if any, Travis Pepper is entitled to recover for medical expenses.” Pepper v. Johns Hopkins Hospital, 111 Md.App. 49, 80 , 680 A.2d 532, 547 (1996). We issued a writ of certiorari to review that decision.

II

The present controversy is best illuminated by a review of the constituent facts and law of Garay v. Overholtzer. As in the case sub judice, in Garay , a minor child allegedly suffered injuries as the result of another’s negligence. The parents of the child tarried for nearly five years before filing a two-count ⁶⁸⁸ complaint against the wrongdoer. The first count of the complaint sought damages in the injured child’s name for his pain and suffering; the second, for parental medical expenses incurred on behalf of the child.

Overholtzer, the alleged tortfeasor, moved to dismiss the second count on limitations grounds, claiming that the parents’ cause of action for medical expenses accrued on the date of the child’s injury. Because the parents waited more than three years to file their action, Overholtzer argued, limitations barred their claim. The trial court agreed and struck the second count, of the complaint. The parents then amended the complaint.

This time, the minor child attempted to claim medical expenses in his own name. Overholtzer again moved to dismiss the claim on limitations grounds, essentially arguing that minors possess no right to bring a claim for medical expenses in their own name and that parents have no right to assign a claim to their minor child that is otherwise barred by limitations. Once again, Overholtzer prevailed. 5 In considering the matter, we agreed that the right to recover medical expenses ordinarily vests in the parents of a negligently injured minor child. 6 332 Md. at 365 , 631 A.2d at 442 (citing Hudson v. Hudson, 226 Md. 521, 530 , 174 A.2d 339, 343 (1961)). This rule of standing, we noted, was premised upon the notion that parents have a duty to care for their minor children, and as part of that duty, must of necessity become contractually bound to others for medical services provided on a minor child’s behalf.

Id. at 366, 631 A.2d at 442 . ⁶⁸⁹ Indeed, Md.Code (1991, 1993 Supp.), § 5-203(b)(1) of the Family Law Article holds the parents of a minor child “jointly and severally responsible for the child’s support, care, nurture, welfare, and education.” Included within the scope of this language, of course, is the parental obligation to provide necessary medical care. Craig v. State, 220 Md. 590, 596 , 155 A.2d 684, 688 (1959). Thus, when a minor child is negligently injured, the parents will and must, as a matter course, assume certain financial obligations that but for the negligence of the tortfeasor they otherwise would have not—i.e, the parents suffer legally cognizable damages. Likewise, a minor child is entitled to recover damages peculiar to it from the same tortfeasor, such as pain and suffering, lost future wages, post-majority medical expenses and permanent disability.

Garay, 332 Md. at 346 , 631 A.2d at 432 . The parental claims for medical expenses, and the minor child’s for personal injuries, however, are two separate and distinct causes of action, each with its own individual character, and each maintainable in its own right. 332 Md. at 346-49 , 631 A.2d at 433-434 ; Hudson, supra, 226 Md. at 528 , 174 A.2d at 342 ; Hartford County Commissioners v. Hamilton, 60 Md. 340, 347 (1883). Thus, despite the temporal confluence of the parents’ and the minor child’s causes of action, we went on to hold in Garay that Maryland Rule 2-211 7 does not compel a joinder of the two in a single suit. ⁶⁹⁰ That observation becomes significant, of course, in light of limitations. The cause of action which vests in the parents after their minor child is negligently injured by another, for limitations purposes, is like most other civil actions—it must be filed within the three-year period provided by § 5-101 of the Courts & Judicial Proceedings Article.

Otherwise, it is barred. On the other hand, the minor child’s cause of action enjoys the tolling period provided by § 5-201(a) of that same article. It provides in pertinent part: “(a) Extension of Time.—When a cause of action subject to a limitation under Subtitle 1 of this title accrues in favor of a minor ..., that person shall file his action within the lesser of three years or the applicable period of limitations after the date the disability is removed.” In Garay , the plaintiff parents lost their cause of action for medical expenses due to limitations, but then attempted to waive the right to collect those sums to their minor child in the same action. We deemed such a waiver impermissible for the simple reason that it would conflict with this Court’s historically strict stance towards statutes of limitation, 332 Md. at 359 , 631 A.2d at 439 , by allowing a time-barred claim to ⁶⁹¹ proceed where it otherwise should not. 8 But most significantly, we eschewed any notion that the right to recover medical expenses vests exclusively in the parents of an injured minor child.

Rather we said that “if the minor child can show that he or his estate either has paid or will be individually responsible to pay for medical expenses: (1) by emancipation, (2) by death or incompetence of his parents, (3) as necessaries for which his parents are unable or unwilling to pay, or (4) by operation of a statute, then ... the minor is entitled to bring a claim for ⁶⁹² those medical expenses [despite the running of limitations for parental claims].” 332 Md. at 374 , 631 A.2d at 446-47 .

III

The present controversy centers around two pre-trial rulings made by the trial court which ultimately prevented the jury from considering any claims for medical expenses. For its part, Hopkins asserts the existence of both procedural and substantive bars to the recovery of medical expenses by Travis Pepper. We shall begin with the latter. Both parties agree that Garay, supra, controls the substantive law of this case.

They part company, however, on Ga-ray ’s practical application. Hopkins contends that even assuming that Travis could claim medical expenses in his own name under one of the four Garay exceptions, any such claims were non-justiciable at the time of trial. With respect to the necessaries exception, Hopkins argues that “[a] minor does not suffer a justiciable injury until his parents are unable to meet 'his medical expenses and he becomes responsible for them under the doctrine of necessities.” (Original emphasis). We disagree.

The doctrine of necessaries has long been a feature of Maryland law. Monumental Bldg. Ass’n. v. Herman, 33 Md. 128 (1870). It is as much a mechanism to protect minors as it is one to protect those who provide them with necessary services and goods.

Generally speaking, minors may avoid contracts entered into by them with adults under the presumption that unequal bargaining power always exists between the two, with the power, and therefore, the potential for overreaching, inuring to the adult. Monumental Bldg., 33 Md. at 131 . Those who would use their superior age and intellectual ability to unfairly disadvantage a minor are thus left without legal recourse should they do so, and therefore any incentive to engage in underhandedness. These consider ⁶⁹³ ations, however, are typically absent when the minor contracts for “necessaries,” variously described as “board, apparel, medical aid, teaching and instruction,” and other like needs.

Id. At least with respect to medical necessaries, the rationale for the departure from the general rule of voidability was poignantly articulated by the Supreme Court of Indiana in Scott County Sch. Dist. v. Asher, 283 Ind. 47 , 324 N.E.2d 496 (1975): “The necessity [for reasonable medical] services is seldom disputed. There is no reason to insulate [the] child ... from the doctor’s or hospital’s suit.

The child was not talked into an improvident purchase.... Since the child received the service and it was a necessary, he is liable.” 263 Ind. at 51 , 324 N.E.2d at 499 . Under that rationale, the Supreme Court of Indiana went so far as to hold that infants and their parents are both jointly and severally liable for the provision of medical care; the child under the doctrine of necessaries, and the parents, under either a common law duty, or statutory duty, to provide for the care and support of their minor children. Id. at 51, 324 N.E.2d at 499 .

Although we agreed in Garay that the doctrine of necessaries could render a child liable for medical services provided to him or her, we declined to extend the doctrine as far as the Supreme Court of Indiana. Rather, we followed the rationale of Gardner v. Flowers, 529 S.W.2d 708 (Tenn.1975) wherein the Supreme Court of Tennessee held that since parents are presumed and charged at law to provide for a child’s necessaries, a contract entered into by a child is presumed to be for non-necessaries, 529 S.W.2d at 710 , and therefore voidable, and in some cases, void ab initio. The Tennessee court continued, however, by noting that where the parents are financially unable to provide for needed medical care, the presumption fails, and any such treatment is a necessary for which the infant is contractually liable. Id. at 711 ; see also Greenville Hosp.

Sys. v. Smith, 269 S.C. 653, 655-56 , 239 S.E.2d 657, 658-59 (1977). We also accepted the notion that when the parents are absent from the minor child’s life but otherwise alive, that fact alone does prevent the minor from being bound to pay for that which was medically necessary ⁶⁹⁴ when furnished if the parents contributed nothing toward the minor’s care and support. See Cole v. Wagner, 197 N.C. 692, 698 , 150 S.E. 339, 341 (1929). Under Maryland law, parents likewise have an obligation under § 5-203(b)(1) of the Family Law Article to provide, inter alia, necessary medical care to their minor children, see Part II., supra, imparting to the parents of an injured child both a primary responsibility to do so, and a primary right to recover medical expenses from a third-party tortfeasor.

But when parents are unwilling or truly unable to pay for such expenses, leaving the child or his or her estate potentially bound in contract, principles of reciprocity demand that the child be given the opportunity to recover those expenses from the wrongdoer. Garay, 332 Md. at 371 , 631 A.2d at 445 . Hopkins contends that at the time of trial, the parents were providing for all of Travis’s medical necessaries (a point hotly disputed by the Peppers and discussed further infra) and that therefore no right vested in Travis to recover those expenses in his own name. As to any claim for future medical expenses, Hopkins maintains that Travis has no claim for such expenses “unless and until the [Peppers] fail to provide them.” We disagree for a variety of reasons.

Despite Hopkins’s implicit assertion to the contrary, the doctrine of necessaries was never intended to be a limitation on a child’s right to recover medical expenses from the person(s) responsible for causing them. It is merely an acknowledgment that for certain services, a minor should not be heard to disavow a contract which by personal necessity required his or her participation. In a case of catastrophic medical injury, we can certainly conceive of a situation where the parents can afford some but not all of the injured child’s past, present, and future medical expenses. Assuming limitations has barred parental claims for such, the doctrine of necessaries protects an injured minor’s right to recover from a tortfeasor medical expenses that his or her parents are ill-able to afford and for which he or she ultimately may be liable. ⁶⁹⁵ Otherwise, the child would be twice victimized—once at the hands of the tortfeasor, and once by parents who, for whatever reason, failed to timely prosecute their claims for medical expenses.

We cannot countenance a result that would leave the only innocent victim in such a transaction uncompensated for his or her injuries and potentially beholden to the compelled generosity of the taxpayer. Public policy and justice demand that an injured minor’s right to recover medical expenses in his or her own name after limitations has barred parental claims begin where the parents’ financial ability to provide for medical necessaries ends. That is the rule of Garay . Moreover, Hopkins’s suggestion that a minor child’s right to recover expenses for medical services only arises when he or she is liable to another for the provision of those services runs contrary to the general principle that “recovery of damages based on future consequences of an injury may be had ... if such consequences are reasonably probable or reasonably certain” to occur.

Cooper v. Hartman, 311 Md. 259, 270 , 533 A.2d 1294, 1299 (1987); Weimer v. Hetrick, 309 Md. 536, 549 , 525 A.2d 643, 650 (1987); Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 666 , 464 A.2d 1020, 1026 (1983). As a corollary to that rule, we think a minor child’s showing that his or her parents were in the past, are presents ly, or in the future will become, financially unable to meet his or her medical needs, sufficiently triggers that child’s right to recover medical expenses in his or her own name from a wrongdoer. 9 That a child is presently not liable for such ⁶⁹⁶ expenses is irrelevant. The law does not require a judgment against an injured child or his or her estate before medical expenses may be individually recovered; only a showing that such expenses are or will be incurred as a natural and probable result of the tortious injury, and that at some point, his or her parents will be financially incapable of meeting those expenses. We by no means suggest however, as do the Peppers, that this translates into a minor child’s entitlement to recover those sums that the parents have expended and can expend for the child’s medical care when parental claims for such expenses are barred by limitations.

That also is the rule of Garay . In that regard, we continue to reject the view that when parental claims are barred by limitations, those claims are implicitly assigned to the minor child. 332 Md. at 365 , 631 A.2d at 442 . See e.g., McNeill v. United States, 519 F.Supp. 283, 290 (D.S.C.1981); Sox v. United States, 187 F.Supp. 465, 469-70 (E.D.S.C.1960); Myer v. Dyer, 643 A.2d 1382, 1387 (Del.Super.Ct.1994); Boley v. Knowles, 905 S.W.2d 86, 90 (Mo.1995); see generally, John H. Derrick, Annotation, Tolling of Statute of Limitations, on Account of Minority of Injured Child, as Applicable to Parent’s or Guardian’s Right of Action Arising out of Same Injury, 49 A.L.R.4th 216 (1987 & 1996 Supp.). Not only is this approach the minority view, see note 8, supra, it does not accord with this Court’s strict stance towards statutes of limitation.

Garay, 332 Md. at 365 , 631 A.2d at 442 . Parents still must file their claims for ⁶⁹⁷ medical expenses resulting from the tortious injury of their child within the limitations period provided in § 5-101 of the Courts and Judicial Proceedings Article. Because Linda and Terry Pepper failed to do so, their claims for medical expenses are forever barred. b. In addition to a substantive bar to Travis’s claims for medical expenses, Hopkins also asserts a procedural bar to those same claims.

Specifically, Hopkins contends that the trial court’s decision to exclude evidence of medical expenses was nothing more than an enforcement of the earlier, and in Hopkins’s view proper, striking of the Peppers’ amended complaint. See Part I., supra. As the Court of Special Appeals pointed out, however, the Peppers did not argue on appeal that that ruling was erroneous and prejudicial. Rather they challenged the trial court’s decision to exclude evidence of any and all medical expenses.

Hopkins views these events as symbiotic. The Peppers, on the other hand, assert that the striking of the amended complaint was irrelevant, and in no way influenced the trial court’s decision to exclude evidence of medical expenses. The principal point of contention raised by Hopkins is that on the eve of trial, the Peppers materially changed their position by