Mayer v. NORTH ARUNDEL HOSPITAL ASS'N

JAMES R. EYLER, Judge. Ann Mayer (Ann), a minor, by her mother and next friend, Dianne Mayer, and Dianne Mayer, individually, plaintiffs below and appellants herein, appeal from a judgment entered in the Circuit Court for Anne Arundel County, after a jury verdict, in favor of North Arundel Hospital Association, Inc. (North Arundel) and Rudolph Jeffries, Jr. M.D. (Dr. Jeffries), defendants below and appellees herein. Appellants alleged that appellees were negligent in failing to properly diagnose and treat Ann for seizures, causing permanent brain damage.

On appeal, appellants contend the circuit court erred in granting a motion for partial judgment in favor of appellees, thereby prohibiting the jury from considering certain acts of negligence. Perceiving no error, we shall affirm the judgment of the circuit court. Factual Background On March 9, 1995, at approximately 7:00 p.m., Dianne Mayer found Ann, her 3-1/2 year-old child, lying on the floor of their home. After efforts to arouse her were unsuccessful, Ms. Mayer called 911.

Paramedics arrived and transported ²⁴⁰ Ann to North Arundel. The paramedics reported they found Ann “unconscious in mother’s arms, cyanotic, gurgling respirations.” Their assessment was “unconsciousness of unknown etiology.” No seizure activity was observed. The paramedics administered medication and established an airway. Ann arrived at North Arundel’s emergency room at 7:41 p.m., conscious with “good respiratory effort.” Dr. Jeffries was the emergency room physician.

The emergency room record indicates there was “a question of seizure disorder at home.” At approximately 7:51 p.m., Ann “displayed generalized •seizure activity.” Valium was administered as follows: 1 mg at 7:54 p.m., .5 mg at 7:58 p.m., 2 mg at 8:02 p.m., and .5 mg at 8:04 p.m. At some point between 8:05 and 8:35 p.m., a tracheal tube was inserted. Another seizure was reported at 8:45 p.m. At approximately that time, Ann was' administered 1.5 mg of Ativan and, at 8:50 p.m., another 1 mg of Ativan.

According to the medical records, Dilantin was ordered at 9:00 p.m., and beginning at. 9:10 p.m., Ann was administered 300 mg of Dilantin over a one hour period. At 10:14 p.m., Ann-experienced another seizure, and she was administered 4 mg of Valium at 10:20 p.m. At 11:15 p.m., Ann experienced another seizure, and she was administered 1.5 mg of Ativan at 11:22 p.m. At ten minutes after midnight, Ann was transferred to University Hospital.

Ann’s condition stabilized, and she experienced no further seizures. Later, Ann was transferred to Kennedy Krieger Institute. Ann had sustained serious and permanent brain damage. At trial, appellants’ position was that Ann suffered from a condition called status epilepticus (continuing or episodic seizures), and appellees failed to diagnose' the condition and provide appropriate treatment.

Appellees’ position was that Ann experienced a seizure, but they had no reason to suspect it was continuing, and they provided appropriate treatment. At the conclusion of all of the evidence, the court granted a motion for judgment in favor of North Arundel with respect to ²⁴¹ any acts other than those committed by Dr. Jeffries. There is no issue on appeal with respect to negligent acts by North Arundel personnel other than Dr. Jeffries. At the conclusion of appellants’ case, appellees moved for a partial judgment, which was denied.

At the close of all the evidence, appellees renewed the motion, and in pertinent part, it was granted. The pertinent ruling was that the jury could not consider any acts after 9 p.m. as a breach of the standard of care. Subsequently, as part of the court’s instructions to the. jury, the court advised .the jury that no acts of alleged negligence that occurred after 9 p.m. could be considered as the basis for an actionable claim (the 9 p.m. instruction). Appellants did not object to this instruction.

The court expressly distinguished acts of negligence from continuing injury, indicating that the jury could consider the latter. . At some point, the jury presented a handwritten note to the court. While it is not entirely clear, it appears this occurred while counsel were taking exceptions to the instructions given. The note stated: - - .

Please repeat- instructions re: 1. 2100 hours 1 2. blood gas 3. transfer The court reinstructed the jury as requested, including the 9 p.m. instruction. Appellants objected to reinstructing the jury generally but did not make any specific reference to the 9 p.m. instruction. The case was submitted to. the jury with a verdict sheet as follows: 1. Do you find that Rudolph Jeffries, Jr., M.D., breached the standard of care required of him as an Emergency Room Physician and was thus negligent in his care and treatment of Ann Mayer?

Yes_ No_ ²⁴² If your answer to Question # 1 is “yes”, proceed to Question # 2. If your answer to Question # 1 is “no”, stop. 2. Do you find that Rudolph Jeffries, Jr., M.D.’s breach of the standard of care required of him as an Emergency Room Physician was a proximate cause of Ann Mayer’s injury? Yes_ No_ If your answer to Question # 2 is “yes”, proceed to Question # 3.

If your answer to Question # 2 is “no”, stop. 3. What amount of damages do you award to Ann Mayer for: Future medical expenses $_ Loss of future earnings $. Pain and suffering (past and future) $. Cost of future care $.

Total $. The jury answered question # 1 in the negative. Appellants filed a motion for new trial, arguing that the court erred in granting the motion for partial judgment and in instructing the jury that it could not consider acts after 9 p.m. as a breach of the standard of care. The court denied the motion, and appellants noted an appeal to this Court.

Contentions Appellants contend that the court erred in granting the motion for partial judgment with respect to any acts after 9 p.m. and instructing the jury accordingly. In support of that argument, appellants assert they produced evidence of negligent acts after 9 p.m. that proximately caused compensable injuries. Appellees assert (1) appellants failed to preserve the issue because they failed to object to the 9 p.m. instruction, (2) appellants failed to present any evidence that Ann suffered an identifiable injury as the result of any alleged negligent conduct after 9 p.m., and (3) the issue raised by appellants is moot because the jury found that appellees did not breach the standard of care prior to 9 p.m., and appellants failed to ²⁴³ present any evidence of “separate, different acts of negligence” after 9 p.m. Discussion Preservation Issue Maryland Rule 2-420(e) provides that a party may not challenge a jury instruction on appeal unless the party objected after the court instructed the jury and stated distinctly the matter objected to and the grounds for the objection.

Appellees assert that the failure of appellants to do so precludes them from raising their issue on appeal. Appellees argue that the situation is analogous to that presented in Jones v. Federal Paper Board Co., 252 Md. 475 , 250 A.2d 653 (1969). We disagree. In Jones , the plaintiffs claimed error in failing to grant judgment (at that time, a directed verdict) in their favor against certain defendants.

The Court of Appeals pointed out that no motion had been made and quoted from prior cases for the proposition that if a motion is made at the conclusion of the plaintiffs case, it must be renewed at the end of the entire case. Jones, 252 Md. at 488-89 , 250 A.2d 653 . If not, and if there is no objection to jury instructions, there is nothing to review. Id.

In the case before us, the motion for partial judgment was made and renewed. Appellees also argue that the issue before us is analogous to the denial of a party’s motion in limine and the party fails to object at trial to evidence that was the subject of the motion. Again we disagree. One of the cases relied upon by appellees that we find particularly instructive is Reed v. State, 353 Md. 628 , 728 A.2d 195 (1999).

In Reed , the defendant moved in limine to preclude evidence of other crimes. Tbe Court discussed different types of motions in limine. The portion of the holding relevant to us is that if a court determines in limine that questionable evidence will not be admitted, except for certain circumstances where a proffer may be required, the issue is preserved without further objection. Reed, 353 Md. at 634 , 728 A.2d 195 (discussing Prout v. State, ²⁴⁴ 311 Md. 348 , 535 A.2d 445 (1988)).

In the case before us, the evidence in question was excluded, and it was intended to be the final word by the court on that subject. The subsequent failure to object to the instruction that was in accordance with the ruling on the motion did not result in a failure to preserve the issue raised by the motion. The Merits Appellants contend they produced evidence of negligent acts after 9 p.m. that were causally connected to permanent injuries. According to appellants, the negligent acts were failures to prevent recurrence of seizures.

The primary focus was on the administration of drugs. Appellants point to testimony by their experts. Dr. Charles Stewart, an emergency room physician, described the use of medications as “chaotic and unwieldy” throughout Ann’s stay at North Arundel. He also opined that significant brain damage occurred approximately an hour after the first seizure (7:51 p.m.).

Dr. Daniel Adler, a pediatric neurologist, explained that, when a brain is deprived of oxygen or nutrients, it will recover unless and until a threshold is reached, and after that time, permanent injury results. Dr. Adler opined that the risk of permanent brain damage existed 30 minutes after Ann’s admission to North Arundel, and that permanent damage had occurred within 30 minutes after her second seizure at the hospital (8:45 p.m.). According to Dr. Adler, the damage progressed throughout her course of stay at North Arundel, with “the substantial quantity” of damage occurring between 10 p.m. and midnight. According to appellants, even if we assume there was no negligence prior to 9 p.m., the jury should have been free to decide whether Dr. Jeffries was negligent thereafter in failing to anticipate and prevent later seizures.

Appellants acknowledge the absence of specific evidence with respect to the extent of the injury caused by such subsequent negligent acts, but argue that such specific evidence was not required. Appellants explain that they proved all they could, and the burden of proof shifted to appellees to show the extent of injury caused by such subsequent negligent acts. ²⁴⁵ The general rule in negligence cases, including medical negligence cases, 2 is that the plaintiff has the burden of proving negligence, the existence of an injury, and that the injury was caused by the negligence. See Fennell v. Southern Maryland Hosp. Center, 320 Md. 776, 786 , 580 A.2d 206 (1990); Weimer v. Hetrick, 309 Md. 536, 546-49 , 525 A.2d 643 (1987).

There are a number of cases that could be cited for the general proposition stated. See, e.g., Johns Hopkins Hosp. v. Genda, 255 Md. 616, 621-23 , 258 A.2d 595 (1969) and cases discussed therein. We cite Fennell and Weimer specifically because they illustrate that the Court of Appeals has continued to adhere to principles of causation as they were traditionally understood and applied. The Court, in the two cases cited, discussed whether the loss of a chance of survival (but less than probable survival) should be subject to relaxed rules of causation, or alternatively, whether it should be recognized as a new element of damage.

The Court declined to do either and reaffirmed the general rule that a plaintiff has the burden of proving, by a preponderance of the evidence, that a defendant’s negligent act caused the death of plaintiffs decedent. Fennell, 320 Md. at 786-87 , 580 A.2d 206 ; Weimer, 309 Md. at 552-54 , 525 A.2d 643 . The loss of chance of survival cases are not factually apposite to the case before us, however. An obvious distinction is that Ann survived, but there are other loss of chances besides survival, e.g., loss of a chance to have a less severe permanent injury.

That is not a loss of chance case because the evidence was that Ann’s injury was progressive and became more severe over time. There was no loss of a chance; the progression was definite; moreover, as discussed in the next paragraph, there was legally sufficient evidence of causation in fact. The tort concept of causation involves causation in fact and a determination as to whether the relationship between the negligent act and the injury is legally cognizable. ²⁴⁶ See Yonce v. SmithKline Beecham Clinical Labs., Inc., 111 Md.App. 124, 137 , 680 A.2d 569 (1996). Causation in fact is frequently discussed as “but for” causation or “substantial factor” causation.

At first blush, it might appear that the issue before us is one of substantial factor causation involving multiple alleged negligent acts by a defendant, as distinguished from the more usual situation involving alleged acts of negligence by multiple defendants. Substantial factor causation primarily addresses the situation where independent causes produce an injury that would have occurred as a result of each cause alone. Yonce, 111 Md.App. at 138 , 680 A.2d 569 . If we assume multiple acts of negligence, there was evidence that each act was a substantial factor in producing some injury.

The evidence indicated, however, that Ann’s injury became progressively more severe over time so that any subsequent act of negligence would have caused less than the entire injury. The substantial factor test answers the question whether a defendant caused any injury. In certain situations, as in the case before us, the question remains as to what injury was caused by each act of negligence. Ultimately, then, the questions before us are whether appellants met their burden of producing (1) evidence of negligent act(s) after 9 p.m., and if so, (2) evidence of the injury caused by such act(s) or, alternatively, enough evidence to show that the injury was indivisible or at least to shift the burden to appellees to show that the injury was divisible.

(1) Our review of the record reveals no evidence of a specific breach of the standard of care after 9 p.m. As pointed out by appellants, Dr. Stewart did testify with respect to the “chaotic and unwieldy” use of drugs. When read in context, however, the explanation of what the witness meant becomes apparent. Dr. Jeffries ordered Valium, and it was administered at 7:54 p.m., 7:58 p.m., 8:02 p.m., and 8:04 p.m.

Referring to those dosages, Dr. Stewart opined that the first dose was an under-dose, and while the combined amount of the dosages might have been acceptable, they should have been adminis ²⁴⁷ tered over less time. In addition, Dr. Stewart opined that Ann should have been given Phenobarbital approximately one hour after she arrived in the emergency room, and the Dilantin given at 9:10 p.m. should have been ordered and given before 9:00 p.m. All of the asserted breaches occurred at or prior to 9 p.m. Dr. Stewart also opined with respect to Dr. Jeffries’ failure to consult an appropriate specialist, Dr. Jeffries’ failure to stay bedside, and a delay in intubation.

The issue of intubation related to a time period prior to 9 p.m. Dr. Adler testified that Ann suffered from status epilepticus caused by fever, and that she sustained brain injury as a result of that condition. Dr. Adler explained that if a brain is deprived of oxygen or nutrients over a period of time, a point of irreversibility occurs, and once that point is achieved, increasing brain injury “takes place over time in an incremental way.” In other words, the amount of brain injury is determined by how long the deprivation takes place. Dr. Adler opined that Ann probably had a seizure at home but suffered no brain injury prior to her arrival at North Arundel.

At the hospital, Ann had seizures off and on for several hours, and when she left North Arundel, she had severe brain damage. The witness explained that within approximately 30 minutes of status epilepticus, the risk of some type of permanent brain injury occurs. Thus, Dr. Alder concluded that the risk of permanent brain damage existed 30 minutes after Ann’s admission to North Arundel, that permanent damage occurred within 30 minutes after her second seizure at the hospital (8:45 p.m.), and that a substantial quantity of the brain injury occurred in the last two hours at North Arundel (between 10 p.m. and midnight). With respect to a breach of the standard of care, Dr. Adler testified that administering Valium was appropriate (although the dosage could have been higher), but that Dilantin or Phenobarbital should have been