Laubach v. Franklin Square Hospital

ROBERT M. BELL, Judge. Timothy Laubach and Nancy Laubach, his wife, appellants/cross-appellees, sued Franklin Square Hospital, erossappellant/appellee, (variously referred to as Franklin Square or the hospital), and United States Fidelity and Guaranty Company, Richard Ayd, Karen A. Kaminski, Gail Robinson, William F. Gately, Esquire, and Allan M. Rifkin, Esquire, collectively, appellees, for fraud, violation of statute, and conspiracy. 1 Prior to trial, each defendant moved for summary judgment. After a hearing, the court entered summary judgment in favor of every defendant except the hospital. As to the hospital, the court granted only partial summary judgment, specifically, only as to those counts alleging fraud and civil conspiracy.

It denied the hospital’s motion insofar as the violation of statute count was concerned; it determined that fetal heart monitoring tracings were medical ²⁰⁷ records within the contemplation of Maryland Health— Gen’l Code Ann. § 4-302 and that there was a dispute of material fact as to whether the hospital “refused” to turn those tracings over to appellants upon their request. The violation of statute count proceeded to trial before a jury, at the conclusion of which, a verdict was entered in favor of appellants. The jury assessed damages, compensatory and punitive, against the hospital at one million dollars. Although satisfied to accept the jury verdict against the hospital, but anticipating this appeal by the hospital, appellants filed what they characterize as a “protective appeal”, challenging only the correctness of the court’s summary judgment rulings. 2 The hospital, satisfied with the court’s partial summary judgment ruling, in its favor, is aggrieved by the jury’s verdict in favor of appellants.

It has, therefore, filed a cross-appeal, raising four issues: 1. Whether the judgment against the hospital for compensatory damages should be reversed, because appellants failed to prove compensatory damages. 2. Whether the judgment against the hospital for punitive damages should be reversed, because the the lower court refused to give any instruction on malice and appellants failed to prove malice. 3. Whether the judgment against the hospital should be reversed, because the lower court erred in admitting evidence which was irrelevant, immaterial and highly prejudicial. 4.

Whether the judgment against the hospital should be reversed, because appellants failed to prove that the hospital “refused” to disclose any “medical record” within a reasonable time. ²⁰⁸ Because resolution of the issues raised on the hospital’s cross-appeal in favor of appellants would render appellants’ appeal moot, we will address the cross-appeal first. We will consider the issues substantially in the order they were raised by the hospital. Before doing so, however, even though neither party has raised the matter, we will, determine if the issues are preserved for our review. For context, we begin by reviewing what occurred both at the close of appellants’ case and at the close of all the evidence.

This is necessary because, in order to preserve an issue for appellate review, the moving party must have, in to making the motion either at the close of the plaintiff’s case or after all the evidence, “state[d] with particularity all reasons why the motion should be granted.” Maryland Rule 2-519(a). 3 At the conclusion of appellants’ case, the hospital submitted a written motion for judgment and a memorandum in support thereof. The memorandum contained the following argument: In addition, the fetal monitor strips are not “medical records” as defined by the statute. The statute defines a “medical records” as defined by the statute, [sic] The statute defines a “medical record” as a “record of medical ²⁰⁹ care that a facility keeps on [an] individual.” § 4-302(a)(3)(i) MD HEALTH GENERAL CODE ANN. (1982).

The fetal tracings are scientific data [compiled] for the physician’s use in prescribing or performing the necessary medical treatment. The record of medical care would be the record evidencing that a fetal heart monitor was utilized on the patient. Moreover, if the hospital did not as a policy consider the tracings as a medical record, it is impossible for the HOSPITAL to actively refuse to provide them when medical records are requested. It appears in the portion of the memorandum headed, Defendant Franklin Square Hospital Did Not Refuse To Produce The Fetal Heart Monitor Tracings.

Interestingly, the hospital’s counsel did not address the point when he orally argued the motion for judgment; counsel confined his “refusal to disclose” argument to addressing whether sufficient information had been produced to prove that any employee of the hospital “refused” to provide the tracings. In that regard, he disputed that the hospital could be found liable on the basis of what the hospital’s attorneys may have known or might have done. The hospital also argued that, since disclosure of the tracings was the subject of a discovery motion, filed in the malpractice action, and resolved by the panel chairman, the issue was res judicata. 4 The court, of course, denied the motion. At the conclusion of all the evidence, the following colloquy occurred: MR.

MASON [The hospital’s counsel]: Yes, your Honor. Of course, we need to make our — we need to review our motion for judgment again. THE COURT: Okay. MR.

MASON: Your Honor, at this time on behalf of the Franklin Square Hospital we would renew our motion. Well, first of all, let me say we close the evidence. The defense rests. We would renew our motion on the ²¹⁰ grounds as stated in our memorandum and as stated in oral argument before your Honor, I believe it was day before yesterday, at the close of the plaintiffs case.

THE COURT: Alright. Ready then: bring the jury please. MR. O’DOHERTY [Appellants’ counsel]: I didn’t think there was a rule on that.

THE COURT: Sorry? MR. O’DOHERTY: I didn’t hear you respond to that. THE COURT: You are absolutely correct.

Motion denied. Thank you____ As can be seen from the colloquy, counsel did not orally state “with particularity” any reasons why the hospital’s motion for judgment should be granted; all he did was refer to the arguments made in the memorandum submitted in support of the hospital’s motion for judgment and those stated in oral argument several days earlier. The hospital moved, as Rule 2-532(a) 5 permits, for judgment notwithstanding the verdict and/or for new trial. Accompanying this motion was a 35 page memorandum setting forth arguments in support of the hospital’s position.

Under the argument captioned, Defendant Franklin Square Hospital Did Not Refuse To Produce The Fetal Heart Monitor Tracings, the hospital addressed the status of the tracings themselves. In pertinent part, it argued: In addition, Franklin Square Hospital should not be held in violation of the statute in failing to produce the fetal heart monitor tracings after a request for the “medical records”, when the Hospital as a policy does not consider fetal heart monitor tracings a “medical record”. The statute defines a “medical record” as a “record of medical care that a facility keeps on an individual.” ²¹¹ § 4-302(a)(3)(l) [§ 4-302(a)(3)(i) ] MD. HEALTH GENERAL CODE ANN.

(1982). The fetal monitor tracings are scientific data [compiled] for the physician’s use in prescribing or performing the necessary medical treatment. The record of medical care would be the record evidencing that a fetal heart monitor was utilized on the patient____ After reviewing that portion of the evidence that it found pertinent to the issue, the argument concluded: In sum, if the Hospital did not consider the fetal heart monitor tracings a “medical record” they lack the requisite scienter for violation of the statute. The statute, which imposes a criminal penalty for the individual who actually violated it, requires proof of an intentional and deliberate decision not to disclose the tracings after a specific request for the tracings.

There is no evidence that any employer [sic] or agent of Franklin Square Hospital intentionally refused to provide the fetal heart monitor tracings after a specific request for them. Accordingly, as a matter of law the evidence viewed in a light most favorable to the Plaintiff is insufficient to support a claim for violation of the statute. 6 (Emphasis in original) ²¹² As we have noted above, the memorandum the hospital filed in support of its motion for judgment, made at the close of appellants’ case, contained arguments quite similar to those advanced here; however, the hospital’s oral argument presented in support of the motion did not, at that time, address all of them. It is even clearer, again as we pointed out above, that when the hospital “renewed” its motion for judgment at the close of all the evidence, it did not “orally” state with particularity all of the reasons why the motion should be granted; in fact, counsel did not make an oral argument at all. Instead, counsel referred to the memorandum previously filed and the oral arguments previously made in lieu of further oral argument.

In this case the memorandum contained particularized reasons, including those advanced on appeal, why the motion should have been granted. Since, however, one of the arguments, which ²¹³ was set out in the memorandum and raised on appeal, was not argued orally either at the end of the plaintiffs case or at the close of all the evidence, the question thus becomes: does the reference to a memorandum previously filed with the court suffice to comply with the requirements of the Rule? The issue has not heretofore been addressed. 7 If we are to address it, we must consider the purpose of Rule 2-519 and whether construing it so as to permit reference to a memorandum to comply with its specificity requirement furthers that purpose. The Court of Appeals’ explanation of its Warfield decision and the defect in ours 315 Md. at 487-488, 554 A.2d 1238 , is helpful.

As we have seen there were no reasons expressly advanced at the time the second motion was made. But when we consider the purpose of the statute and the rule in the light of their context, see Kaczorowski v. City of Baltimore, 309 Md. 505, 516 , 525 A.2d 628 (1987), we are satisfied that the command to particularize reasons has ²¹⁴ been met in the circumstances here. The general purpose of the statute and the rule is patent. It is to implement, by means of a motion for judgment of acquittal, the constitutional authority given an appellate court to pass on the sufficiency of the evidence.

The specific purpose of the mandate of the rule to particularize the reasons for the motion is to enable the trial judge to be aware of the precise basis for the defendant’s belief that the evidence is insufficient. Then the judge in determining the motion may fully appreciate the position of the defendant. All in all the command to particularize the reasons operates to the benefit of the defendant and also acts as an aid to the trial judge. When a defendant offers evidence on his own behalf after his motion for acquittal is denied, the motion is withdrawn and not subject to review.

But the reasons given for the motion are still within the ambit of the trial; they are not erased. To strike them from the record so as to preclude their consideration with respect to the second motion is against sound reason, common sense, and the legislative intent. We do not see the “great burden” which the Court of Special Appeals fears this view would impose on the trial judge. Warfield, 76 Md.App. at 147, 543 A.2d 885 .

Although a criminal case, the principles stated apply equally to civil cases. Id. 315 Md. at 488 , 554 A.2d 1238 ; State v. Lyles, 308 Md. 129, 135-36 , 517 A.2d 761 (1986). It is obvious, however, that this discussion was directed at oral argument and not at a situation where a memorandum had been submitted. Thus, it is not dispositive.

Ordinarily, the arguments made in a memorandum are stated with particularity, if the court would but read them. And, if the court did read the memorandum, it could “make an intelligent and informed ruling on a subsequent motion made at the close of all the evidence without the benefit of re-argument____” Although arising in a different context, i.e., in the context ²¹⁵ of Rule 554, the predecessor of present Rule 2-520, 8 what the Court of Appeals said in Sergeant Co. v. Pickett, 283 Md. 284, 288 , 388 A.2d 543 (1978), is also helpful: The reason for Rule 554(d) and (e) 9 as this Court stated in Fisher v. Balto. Transit Co., 184 Md. 399, 402 , 41 A.2d 297 (1945), “is obviously to enable the trial court to correct any inadvertent error or omission in the oral charge, as well as to limit the review on appeal to those errors which are brought to the trial court’s attention.” In this matter, the trial judge is afforded “an opportunity to amend or supplement his charge if he deems an amendment necessary.” State v. Wooleyhan Transport Co., 192 Md. 686, 689-90 , 65 A.2d 321 (1949). Succinctly put, then, the rule is designed to afford the trial judge and opposing counsel ample opportunity to be informed of the nature and grounds of the exception.

Indeed, no special form is required for the objection and no ground need even be stated “where the record makes clear that all parties and the court understood the reason for the objection.” Exxon Corp. v. Kelly, 281 Md. 689 , 694 n. 6, 381 A.2d 1146 (1978). ²¹⁶ The court acknowledged those cases holding that “reference to the instruction by number, without a statement of the specific grounds for objection distinctly stated at the time exception is taken, is not a compliance with the Rules ...” see Belt’s Wharf v. Internat. Corp., 213 Md. 585, 592 , 132 A.2d 588 (1957). See also, e.g., Jones v. Federal Paper Bd. Co., 252 Md. 475, 490-91 , 250 A.2d 653 (1969); Podolski v. Sibley, 12 Md.App. 642, 644-45 , 280 A.2d 294 (1971).

It held, however, that, because, in that case, the appellant provided, in addition to the request number, information, albeit precious little, sufficient to identify for the trial judge the nature and ground of the objection, thus serving the purpose of the Rule, the exceptions were preserved. 283 Md. at 289 , 388 A.2d 543 . The court explained: Here, further exposition by appellants’ counsel of the “ground” for the principle of law reflected by the instruction would have been both fruitless and unnecessary insofar as the rule was concerned. Once the trial court had signified that it comprehended the precise point being asserted, but nevertheless rejected it out-of-hand, the requirements of the rule had been met. At a minimum, this certainly represented substantial compliance with [the] Rule ... and, we hold, was therefore sufficient to preserve the issue for appellate review.

(Footnote omitted) 283 Md. at 289-90 , 388 A.2d 543 . Turning to the case sub judice, we hold that, upon “renewal” of a motion for judgment at the close of all the evidence, reference to a memorandum, previously submitted to the court, which sets forth with particularity the arguments in support of the motion is sufficient compliance with Maryland Rule 2-519(a). As we have already indicated, the arguments in the subject memorandum were particularized and they did not become less so at the end of all the evidence. We are mindful, of course, of the fact that the record does not reflect when the trial judge read the memorandum.

We are satisfied, however, that he did so and, in any event, is charged with having done so. Nor are we ²¹⁷ concerned by the fact that, in oral argument on the motion for judgment at the end of a plaintiff’s case, not all arguments pressed on appeal were made; it is not necessary that one orally argue every point that one has made in a memorandum in support of a motion. There is no inconsistency between the Rule we now enunciate and Warfield . Indeed, it is but a logical extension of Warfield ; if a court is required to inquire should it desire clarification of the basis for a “renewed” motion for judgment, see 315 Md. at 488 , 554 A.2d 1238 , when a memorandum has been filed and is, therefore before the court, the court certainly should be required to refer to it, when necessary.

COMPENSATORY DAMAGES The hospital’s contention that appellants failed to prove entitlement to compensatory damages, proceeds on two premises: first, that in the absence of a physical injury, damages for emotional distress are not recoverable and, second, the applicable statute does not permit litigation costs to be recovered as actual damages. With respect to the former premise, the hospital acknowledges that emotional distress may form the basis for the recovery of actual damages where the emotional distress arises from an intentional tort, such as libel, slander, malicious prosecution, fraud, and the like. See H & R Block, Inc. v. Testerman, 275 Md. 36, 48-49 , 338 A.2d 48 (1975), Zeigler v. F Street Corp., 248 Md. 223, 225-26 , 235 A.2d 703 (1967); Davis v. United States Dept. of Army, 602 F.Supp. 355, 360 (D.Md. 1985). The hospital contends, however, that that is not what is involved here; this case simply involves the “violation of a statutory command to disclose records, which, on its face, is different in kind than defamation, fraud, malicious prosecution, and similar torts involving an element of intentionally harming someone.” On the contrary, the hospital suggests that “the alleged violation of statute is more analogous to a breach of contract, rather than tort, and there appears to be no authority for allowing damages for ²¹⁸ emotional distress arising from a breach of contract.” Indeed, the hospital asserts that, at best, the cause of action in this case is analogous to the emotional distress arising from negligence; in such situations, there can be no recovery for emotional distress in the absence of “some clearly apparent and substantial physical injury, as manifested by an external condition or by symptoms clearly indicative of a resultant pathological, physiological, or mental state.” Vance v. Vance, 286 Md. 490, 500 , 408 A.2d 728 (1979).

Concerning the latter premise, the hospital argues that, since as a general rule litigation costs are not recoverable in either the same or a subsequent action, see e.g., Archway Motors v. Herman, 41 Md.App. 40, 43 , 394 A.2d 1228 (1978), cert. denied, 284 Md. 741 (1979), and since the only actual damages appellants alleged, other than that for emotional distress, were the cost of expert witnesses and a transcript, both in connection with the medical malpractice action, the evidence, of necessity, could not form the basis for the award of actual damages in this action. Maryland Health — General Code Ann. § 4-302(d)(2) provides: If a facility refuses to disclose a medical record within a reasonable time after a person in interest requests the disclosure, the facility is, in addition to any liability for actual damages, liable for punitive damages. By its express terms, the statute proscribes intentional, as opposed to negligent or contractual, conduct. The jury was so instructed, at the hospital’s request, and without objection. 10 This same point forms the basis for appellee’s argument concerning the sufficiency of appellants’ proof of the hospital’s refusal to disclose the medical records.

Specifically, the hospital, relying upon the definition of “re ²¹⁹ fuse” in Black’s Law Dictionary, 11 maintains that appellants did no more than show that the fetal monitoring tracings were not produced as opposed to proving that the hospital refused to produce them. In other words, the hospital contends that there never was any proof that the hospital mentally determined not to comply with appellants’ request for those medical records. Notwithstanding the cause of action is based upon the violation of a statute, as opposed to the violation of the common law, the conduct which forms the basis for the cause of action is more closely akin to intentional torts than to negligent acts. Consequently, there was no need for appellants to prove a physical injury of the sort required by the Court of Appeals in Vance, supra.

It was sufficient that the emotional distress and mental suffering were elements of damages emanating directly from the intentional conduct of the hospital in refusing to disclose the fetal monitoring tracings. The hospital fares no better insofar as its second premise is concerned. As we have seen, the statute permits recovery of “actual damages” from a violator. The statute does not specify or define what these damages are.

Notwithstanding that the general rule is that litigation costs may not be recovered in either the same or a subsequent action, see Archway Motors, 41 Md.App. at 43 , 394 A.2d 1228 ; Freedman v. Seidler, 233 Md. 39, 47 , 194 A.2d 778 (1963), where such costs are incurred directly as a result of the intentional conduct of the violator, they constitute actual damages arising out of the violation of the statute. ²²⁰ Indeed, that is especially the case when, as here, the litigation costs were incurred in a prior, and separate, action. In this case, the costs allowed were the expenses incurred by appellants to obtain the original fetal monitoring tracings after the hospital’s counsel refused to provide them voluntarily and the fee paid to appellants’ expert witness for an opinion based upon the facts as they were known prior to production of the tracings. Neither of these expenses would have been incurred but for the conduct of the hospital in “refusing” to disclose the fetal monitoring tracings. PUNITIVE DAMAGES The hospital contends that the trial court erred when it refused to instruct the jury that an indispensable precondition to the award of punitive damages is proof of “malice”.

It concedes that the statute, rather than set forth the standard for the award of punitive damages, merely provides that such damages may be awarded. Nevertheless, the hospital believes that the common law standard for the award of punitive damages must be read into the statute. On the question of punitive damages, the trial judge instructed the jury: As I said, the statute allows recovery if refusal is shown for actual damages and for punitive damages. If you