Marlow v. Cerino

Gilbert, J., delivered the opinion of the Court. Lucille Marlow, (Mrs. Marlow), one of the appellants, is a tragic person. She is currently a patient in the Baltimore Ci ty Hospital because she is cortically blind and totally and permanently incompetent. Through her guardian Mrs. Miarlow filed a suit against Dr. Cenap S. Dorkan (Dr. D>orkan), Dr. Michele Cerino (Dr. Cerino) and South Baltimore General Hospital (S.B.G.H.) in which she alleged that her current condition is a direct result of the negligence of Dr. Dorkan, Dr. Cerino and S.B.G.H. individually or any ⁶²¹ combination thereof.

Mrs. Marlow’s husband joined in the suit in order to recover for the medical expenses incurred in behalf of his wife 1 and for damages to the marital relationship. The matter was removed from the Superior Court of Baltimore City to the Circuit Court for Montgomery County. There, a jury presided over by Judge Ralph G. Shure rendered a verdict in favor of all of the defend ants-appell ees. Displeased with the jury’s verdict the plain tiffs-appellants have presented for our review a multitude of alleged errors committed by the trial judge.

Some of the appellants’ contentions are concerned with the jury instructions. Others deal with the trial judge’s rulings on the evidence. THE FACTS Mrs. Marlow was admitted to the North Arundel Hospital in Anne Arundel County, Maryland, on the afternoon of January 8,1969. At that time she was seen in the emergency room by Dr. Dorkan.

Dr. Dorkan diagnosed her condition as “pleural effusion, pneumonia, dehydration and empyema 2 possible.” Dr. Dorkan determined that Mrs. Marlow should be admitted to the hospital because of her condition. Because there were no beds at North Arundel Hospital, Mrs. Marlow was transferred to S.B.G.H. When she arrived at S.B.G.H. by an ambulance, she was immediately admitted. At one point in the testimony it is indicated that Mrs. Marlow was admitted to S.B.G.H. at 7:40 P.M. and that Dr. Dorkan had followed the ambulance to S.B.G.H. There is no great dispute as to when Mrs. Marlow arrived at North Arundel Hospital although there was conflicting evidence as to the time when Dr. Dorkan first saw her. According to Mrs. Marlow’s husband the illness which necessitated his taking her to North Arundel Hospital had its onset several days earlier. ⁶²² Mr. Marlow stated that his wife communicated with both the personnel at North Arundel Hospital, and Dr. Dorkan.

Dr. Dorkan, on the other hand, testified that Mrs. Marlow was unable to communicate clearly. Dr. Aristedes Mavrides, a resident at S.B.G.H., testified that when Mrs. Marlow arrived at S.B.G.H. he “couldn’t get some specific answers from the lady.” After antibiotics were administered to Mrs. Marlow, a needle was inserted into the pleural cavity and a sampling of a fluid consisting of blood and pus was extracted. It was determined by Dr. Dorkan and Dr. Mavrides that it was necessary for Mrs. Marlow to be given a thoracostomy. 3 According to Dr. Dorkan and Dr. Mavrides the problem that then confronted them was two-fold. First, they had trouble obtaining a thoracic surgeon at that time to examine Mrs. Marlow and second, her condition was such that, in the words of Dr. Dorkan, “no surgeon would have touched her.” Mrs. Marlow’s condition, despite the antibiotics, continued to worsen.

The next day, although still very sick, she had, nevertheless, stabilized. Dr. Cerino was called to examine the patient. It was determined that Mrs. Marlow was “gravely ill” and that immediate surgery was necessary because time was running out for her, and that if the operation were going to do any good at all, it had to occur immediately. Mrs. Marlow was taken to the operating room where the thoracostomy was performed through the use of a local anesthesia.

No anesthesiologist was present in-the operating room. An incision of approximately one inch in length was made in her back. Dr. Cerino testified that the operation was actually performed by Dr. Samadi under the direction of Dr. Cerino. During the operation, which the record reveals was supposed to last but a short time, Dr. Cerino monitored Mrs. Marlow’s heart by watching it beat against the chest wall.

When he observed that Mrs. Marlow was no longer breathing he announced that fact and had her turned over onto her back. He commenced closed chest massage while Dr. Samadi simultaneously performed mouth-to-mouth resuscitation. A call was put out over the hospital inter-communication ⁶²³ system for a CPR team, 4 and it arrived forthwith. Mrs. Marlow recovered from the empyema and pneumonia.

Approximately three weeks after the operation, Mrs. Marlow was transferred to the United States Public Health Service Hospital where she remained until her subsequent removal to the Baltimore City Hospital. The issue presented to the jury was whether Mrs. Marlow’s cardiac arrest and brain damage was caused by: a. the failure on the part of Dr. Dorkan to treat Mrs. Marlow properly during the pre and postoperative phases of her hospitalization; b. the failure of Dr. Cerino to exercise the requisite standard of care both prior to and during the operative procedure; c. the failure of S.B.G.H. to afford the proper standard of care to Mrs. Marlow both before and during the operation; d. the prior toxic affect of the “little diseases” from which Mrs. Marlow suffered at the time she first came under Dr. Dorkan’s care; e. any combination of a, b, c and d. At the trial, the plaintiffs-appellants sought to demonstrate to the jury that Dr. Dorkan had “abandoned” Mrs. Marlow once he had caused her to be taken to S.B.G.H. This evidence was disputed by Dr. Dorkan. A battle of experts concerning the standard of medical care employed by Dr. Dorkan as a general practitioner, Dr. Cerino as a thoracic surgeon and S.B.G.H. as a hospital took place.

It is clear from the verdict that the jury believed that the standard of care afforded to Mrs. Marlow by the defendants-appellees equalled the standard required. JURY INSTRUCTIONS The main thrust of the appellants is that the trial court ⁶²⁴ erroneously instructed the jury on “contributory negligence” and compounded its error by an unduly repetitious instruction. Judge Shure said to the jury: “You cannot conclude that merely because the plaintiff suffered a cardiac arrest which resulted in brain damage, that the injury was a result of the treatment or lack of care rendered by Dr. Cerino, as the mere occurrence of such a collapse does not create a presumption of negligence, as I have previously indicated to you. Also, however, I tell you that you take a patient as you find her and you treat him or her for the condition that is presented to you, but you are entitled to consider how long a condition has been present or developing when first seen by the doctor, and even though the result may have been contributed to by the negligence of other doctors or the hospital, if you conclude that Mrs. Marlow suffered the ultimate injury by reason of her own default in seeking medical attention which caused the empyema which ultimately resulted in brain damage, the burden has not been met and such findings would require a verdict for the defendant, Dr. Cerino.” (Emphasis supplied).

Similar language was employed in the instructions pertaining to Dr. Dorkan and S.B.G.H. The appellants take umbrage with the charge, as well as with Judge Shure’s refusal to inform the jury that Mrs. Marlow was not, as a matter of law, guilty of contributory negligence. The part of the instruction which the appellants find most odious is the phrase, “by reason of her own default.” Appellants argue that these words placed a burden upon the appellants to disprove contributory negligence and were “tantamount to directed verdicts against them.” We do not see it that way. The word default is defined in Webster’s Third New International Dictionary of the English Language (unabr. ed. 1967), as “the absence of something needed. Lack: want.” As we read Judge Shure’s instruction, the message comes through loud and clear that the jury was advised that if they ⁶²⁵ should find the proximate cause of Mrs. Marlow’s injuries to be the result of negligence on the part of the appellees, or any of them, that the jury should find for Mrs. Marlow.

If, on the other hand, the jury should find the proximate cause of Mrs. Marlow’s injuries to have been her delay in seeking medical care so that her condition was such that she would have suffered the injuries complained of, notwithstanding the presence of due care on the part of the appellees, then the jury should find against Mrs. Marlow. There was evidence in the case that Mrs. Marlow was suffering from a series of “little diseases” which in and of themselves made her condition moribund. Under the circumstances, the jury was entitled to consider whether or not Mrs. Marlow’s prior physical condition was a significant factor in, or the sole cause of, the brain damage and blindness that she ultimately sustained. When exception was taken by the appellants to the jury charge, Judge Shure gave additional instructions in which he said: “With respect to Mrs. Marlow’s prior condition about which we have heard much testimony and about which there is no conflict.

I say there is no conflict to the extent that she had been ill for several days before she came to the hospital to see Dr. Dorkan. If this physical condition of Mrs. Marlow was the proximate cause of the damage she suffered thereafter, then your decision must be for the defendants, but if the care of the defendants or the lack of it is negligent, as I have described it to you, and this was the proximate cause of her damage, then your decision must be for the plaintiffs.” For the reasons heretofore stated we think that the original instruction was not in error, but even if it were, the judge’s subsequent instruction relative to proximate cause cured any possible misapprehension on the part of the jurors. We perceive no error in the court’s refusal to give an instruction concerning Mrs. Marlow’s lack of contributory negligence. In ⁶²⁶ Batten v. Michel, 15 Md. App. 646 , 292 A. 2d 707 (1972), we said, at 653: “Unless there be some evidence of negligence of the plaintiff contributing to the happening of the accident beyond a mere scintilla, or evidence from which negligence may be legally inferred by reasonable persons, there is nothing which justifies the submission of the plaintiff’s negligence to the jury.

Gutterman v. Biggs, 249 Md. 421 , 240 A. 2d 260 [(1968)]; see Rice v. Norris, 249 Md. 563, 566 , 241 A. 2d 411 [(1968)].” In the case before us we do not find even an iota of evidence that the appellees either alleged or attempted to prove contributory negligence on the part of Mrs. Marlow. Hence, the question of her contributory negligence was not at issue. Furthermore, there is no merit in the appellants’ contention that the instructions were repetitive. The allegation of repetitiveness is directed to the fact that Judge Shure gave, as we have previously observed, a similar instruction as to each of the three appellees.

The Court of Appeals, addressing itself to the subject of repetition of jury instructions said in Ager v. Baltimore Transit Co., 213 Md. 414 , 132 A. 2d 469 (1957), at 423: “While undue repetition, in an instruction, of any of the points contained therein is not to be recommended, a violation of this rule is not reversible error, unless it reasonably appears that the jury has been misled. 3 Am. Jur., Appeal and Error, sec. 1118.” In the instant case there is nothing to indicate that the jury was misled or confused by repetitive instructions. The appellants requested three prayers concerning the professional responsibility owed by Dr. Dorkan to Mrs. Marlow. In essence, the prayers sought to have the jury instructed that it was Dr. Dorkan’s duty to arrange for and administf" antibiotics to Mrs. Marlow, to arrange for the drainage of the empyema and that Dr. Dorkan’s physical ⁶²⁷ presence was required to make informed, professional judgments rather than to rely upon the judgment of others.

Judge Shure in his instruction said of Dr. Dorkan: “The charges against him are that he failed to promptly obtain a thoracic surgeon for assistance, that he failed to treat or failed to treat properly Mrs. Marlow, and that he abandoned her as a patient. “In evaluating the testimony in this claim, you consider all of the evidence presented from the time that Dr. Dorkan came into the picture at North Arundel Hospital and his actions thereafter, including his medicines prescribed, the instructions to Dr. Mavrides, the hospital charts, his contact with employees of the hospital, thoracic surgeon, his return to Severna Park, and his actions thereafter, including specifically instructions and what you consider attention or lack of attention after he left the hospital and from then until the end result in Mrs. Marlow.” To support their position that the instruction is erroneous, the appellants point to the testimony of one of their experts, Dr. Reap, who stated that Dr. Dorkan should have stayed with Mrs. Marlow until her condition had stabilized and that she should have been admitted into the intensive care unit from the time she arrived at S.B.G.H. Plaintiffs rely heavily upon Thomas v. Corso, 265 Md. 84 , 288 A. 2d 379 (1972). In that case a doctor who lived approximately ten minutes from the hospital was called to attend an individual who had been struck by a motor vehicle. The doctor who had been telephoned at 11:25 P.M. arrived at the hospital at 2:30 A.M., just in time to pronounce the patient dead. The Court of Appeals, speaking through Judge Barnes, said at 98: “In 1 Louisell and Williams, Medical Malpractice, § 8.05, pp. 206-07, it is stated: ‘The duty to attend the patient after a ⁶²⁸ physician-patient relationship has been established is a clearly defined specific duty within the general duty of due care.

A physician cannot properly withdraw from a case under diagnosis or treatment without giving reasonable notice. How much attention a particular case may require in order to satisfy the standard of reasonable care, often is a matter for expert evidence. It requires no expert evidence, however, to show that failure altogether to attend a patient, when common sense indicates that without attention the consequences may be serious, is not reasonable care.’ (Emphasis supplied.)” Thomas v. Corso, supra, is not apposite to the instant case. We are not here concerned with the question of the doctor’s failure to attend a patient.

The issue is whether having once undertaken to attend the patient, Dr. Dorkan fulfilled his duty. The testimony of Dr. Dorkan and his expert witnesses was that Dr. Dorkan had done all that could be expected of him and that his services met the degree of professional responsibility required. The requested instructions completely ignore the evidence presented by Dr. Dorkan.a"d were almost the equivalent of a motion for a directed verdict in favor of the appellants. Dr. Cerino related to the jury that when he first saw Mrs. Marlow she was moribund (dying; at the point of death).'The doctor said “she was going to die because of the multiplicity of the little diseases she was suffering from.” She was in “septic shock which carries a mortality rating of ninety per cent on people with no additional diseases.

This lady was suffering from uncontrolled diabetes and you know I don’t have to tell you that people with diabetes are prone to infections and do not heal as well.” There was evidence that Mrs. Marlow had a history of chronic alcoholism for which she had been treated over a period of years. The last “treatment” was in 1963, but there was an entry on the Taylor Manor hospital records that Mrs. Marlow’s husband had called Taylor Manor in 1967 and told ⁶²⁹ them that his wife was having a relapse. Moreover, the “history” entered in the records of the United States Public Health Service Hospital, to which Mrs. Marlow was taken following her discharge from S.B.G.H., reveals that: “The past history is significant in that Mrs. Marlow had formerly, on several occasions, been schizophrenic. In 1963, she was hospitalized for six months at Taylor Manor.

She denied smoking; however, her husband did note that she had been drinking quite heavily over the past few weeks prior to admission to South Baltimore General Hospital.” There is an additional note: “drink — whiskey — on weekends — increasing for three or four months.” The importance of the history of alcoholism was pointed up in the testimony of Dr. Cerino who said: “And chronic alcoholics [sic] creates many changes in the brain, liver and other organs that make a patient more susceptible to infection and more difficult to treat. She had her chest full of pus. Not only that but the right lung was completely involved by pneumonia. At the time I saw her she was incoherent and unable to speak, telling me that the germs or the toxins in the blood stream already affected her brain.” In the light of the testimony as above recounted, Judge Shure properly refused the appellants’ prayer: “. . . that, as a matter of law, there is no evidence legally sufficient to justify an inference that plaintiffs pneumonia or empyema was caused by a prior alcoholic condition, and you are not to speculate as such in your deliberations.” In addition to Dr. Cerino’s evidence, there was testimony from an expert that: “. . . [P]atients with diabetes, cancer, alcoholism . . . are more likely to develop these kinds of complications, particularly empyema.” ⁶³⁰ The requested instruction, had it been given, would have been directly contrary to the evidence.

The trial judge was not in error. Appellants next assert that the court erred in refusing to instruct the jury that there was no legally sufficient evidence to justify an inference that “the cardiac arrest or cardiovascular collapse suffered by plaintiff, Lucille Marlow, was caused by a prior alcoholic condition, or that the widespread cortical destruction, permanent brain damage, blindness and incompetence suffered by plaintiff, Lucille Marlow, was caused by a prior alcoholic condition ....” The requested prayer also ignores the evidence. Dr. Cerino testified that “in the case of Mrs. Marlow. .. [the] profound cardiac respiratory collapse . ■. . was the end result of her multiple diseases,” the diseases, as we have previously observed, included alcoholism. We perceive no error.

While it is difficult to follow the appellants’ argument, concerned with the trial judge’s failure to grant the appellants’