Muti v. University of Maryland Medical Systems Corp.

MATRICCIANI, J. On September 23, 2008, appellants, Giuseppina, Tom, and David Muti, filed a complaint in the Circuit Court for Baltimore City, naming appellee, University of Maryland Medical System Corporation (“UMMS”), as the sole defendant and claiming three counts of wrongful death and one count of medical negligence as a survival action. On August 31, 2009, appellee moved to dismiss appellants’ wrongful death claims and, in the alternative, for summary judgment on all counts. The trial court granted appellee’s motion to dismiss and entered summary judgment in appellee’s favor on the remaining survival claim. Appellants filed timely notice of this appeal on October 30, 2009.

Questions Presented Appellants present two questions for our consideration, which we have edited for clarity: I. Did the trial court err when it dismissed appellants’ wrongful death claims without leave to amend?

II

Did the trial court err when it granted summary judgment in favor of appellee in appellants’ negligence action? For the reasons set forth below, we answer yes to both questions. Therefore, we vacate the court’s order of dismissal, reverse the order granting summary judgment, and remand this case for further proceedings in the circuit court. Factual and Procedural History Elliot Muti suffered an acute myocardial infarction on January 20, 2005.

He was first admitted to Mercy Hospital, where he underwent a cardiac catheterization of the left circumflex with stent. Mr. Muti’s physicians discovered a ninety-percent ⁵⁶⁶ stenosis of his left posterior descending artery that was not amenable to stenting, and so they transferred him to the care of appellee, UMMS, for emergency coronary bypass surgery later that day. As part of the bypass surgery, UMMS physicians intubated Mr. Muti. On each of the two days following his bypass surgery, physicians performed a bronchoscopy, but blood in the catheter area prevented them from visualizing the trachea.

Doctors attempted to extubate Mr. Muti on January 22, 2005, but had to perform an emergency re-intubation immediately afterwards. Mr. Muti was again extubated on January 26, 2005, but developed respiratory complications and was again intubated on February 6, 2005. Radiological studies taken over the next two days indicated the presence of air in Mr. Muti’s chest cavity, a condition known as “pneumomediasti-num.” On February 9, 2005, Mr. Muti’s thoracic surgeon performed a bronchoscopy and noted a two-to-three millimeter “injury in the anterior tracheal wall just to the left of the midline 1 ring above the carina bifurcation.” The surgeon noted that Mr. Muti had sepsis from both pulmonary and gastroenterological origin and was on high ventilator settings, and therefore “encouraged the ICU team to minimize the pressure control ventilation” and ordered another radiological study to rule out esophogeal injury. Following his bronchoscopy, Mr. Muti experienced worsening respiratory failure and mid-chest inflammation.

Mr. Muti developed pneumonia, ventricular tachycardia, and renal failure, and died on March 4, 2005, at the age of 65. Appellants filed a complaint and request for jury trial in the Circuit Court for Baltimore City on September 23, 2008, alleging medical negligence as a survival action on behalf of the decedent, Elliot Muti. 1 Appellants amended their com ⁵⁶⁷ plaint on August 26, 2009, to add wrongful death counts corresponding to each of the three appellants. In each of appellants’ three wrongful death counts, they further alleged that, as a direct result of appellee’s negligence, “which culminated in the death of the Decedent,” each of them suffered damages. The suit proceeded to discovery, and appellants were deposed on February 2, 2009.

At the deposition, they revealed—to the apparent surprise of both sets of counsel—that Elliott Muti had adopted a son, “Ricky,” during a previous marriage. Appellants testified that Ricky Muti had not lived with his father since 1977, that none of them had been in contact with him since 1987, and that they did not know how to contact him. On August 31, 2009, appellee moved to dismiss appellants’ wrongful death claims for failure to join a necessary party and moved for summary judgment on all counts; appellants opposed each of these motions. The parties submitted exhibits with their motions and oppositions, including deposition testimony from appellants’ experts, Dr. Brian McAlary and Dr. Monroe Karetzky.

Dr. McAlary is a board certified anesthesiologist. Appellants designated him to testify concerning breaches in the standards of care related to Mr. Muti’s tracheal tear and appellee’s alleged failure to treat the tear in a timely manner. In his deposition, 2 Dr. McAlary testified as to the factual foundation for his opinion that the circumstances indicated negligence on the part of Mr. Muti’s treating physicians: [Ijnjuries to the trachea would be in the category of those types of airway injuries that would be the least likely to not ⁵⁶⁸ be related to negligent care. That was very poorly stated.

Let me see if I can rephrase that. Injuries to the trachea would be the least common of airway injuries and the highest majority of those would be negligent in nature. Q. And what do you base that statement on? A. No one thing.

Certainly, it was part of my training. I think it’s conventional wisdom among those that I’ve worked with for years. Q. So is there anything I could go and look at that would support your statement that injury to the trachea is most commonly associated with negligence when it occurs in the setting of endotracheal intubation at this point? A. No.[ 3 ] Dr. McAlary further explained his reasoning when asked if the physician performing the intubation breached the standard of care: [Fjirst of all, it starts with the probability that it was during the placement of the double-lumen tube when the subsequent documented tracheal—distal tracheal injury occurred.

Second of all, it would be highly unlikely for a lesion on the mucosal side of the trachea to be caused by anything done by, for example, the surgical caregiver. Thirdly, there was nothing described in this record either prior to or subsequent to this surgery that would indicate that this patient had significant predisposing factors such as those we discussed before that would put this patient’s trachea at significant greater risk of injury absent improper technique or inappropriate force. ⁵⁶⁹ Q. So is it your testimony, Doctor, that because in your review of the records this patient was not at high risk for a tracheal injury and because based upon your opinion a tracheal injury did occur during placement of the double-lumen tube that there had to have been negligence? A. Fundamentally, yes, in this particular setting. Finally, Dr. McAlary opined that the mechanism of injury to Mr. Muti’s trachea was “[pjrobably the failure to rotate the double-lumen tube prior to reaching the carina.” Dr. McAlary also testified that the tracheal tear contributed to Mr. Muti’s respiratory failure: A. It would be a combination of any underlying pulmonary pathology, as we’ve discussed before.

It would be the super-imposed impact of even a minimal thoracotomy on ventilatory insufficiency. It would have been whatever amount of material leaked from the tear. And it would have been some degree of pulmonary edema. So it would have been multifactorial.

Q. Are you able to quantify out the degree to which the tracheal tear contributed to the respiratory failure and in the immediate postoperative period? A. Not really. Q. Do you have an opinion as to whether Mr. Muti would have suffered respiratory failure in that immediate postoperative period even if he had not had the tracheal tear? A. Only to the extent it would have been likely significantly less severe.

Q. And what do you base that on? A. Statistically, that patients even with smoking histories, documented COPD, who undergo minimally invasive thoracotomies and who have no injury to the tracheobron-chial trees usually can be extubated significantly sooner and their chest X-rays are usually not as involved, particularly on the contralateral side. Appellants’ second expert, Dr. Karetzky, is board certified in internal, geriatric, and critical care medicine and had prac ⁵⁷⁰ ticed in those areas for more than forty years. Appellants designated Dr. Karetzky to testify concerning breaches of the standards of care in failing to address the tracheal tear and its sequelae in a timely manner with appropriate diagnostic methods or treatment.

Appellants further designated Dr. Karetzky to testify that “these deviations from the standards of care were a proximate cause of Mr. Muti’s injuries in this case.” Dr. Karetzky testified, in relevant parts: [T]he diagnosis of pneumomediastinum indicated the traumatic event, which was subsequently confirmed on bron-choscopy and that this should have been done in a timely fashion to repair it before it sealed off itself.... The diagnosis was confirmed on C.T. scan that there was pneumomediastinum. The C.T. scan was not done until the 7th and it could have been done on the 6th and then air would have been seen on the 6th. As soon as the air is seen, he should have had a bronchoscopy to confirm the tear and to repair it.

Q. Okay. Now, Doctor, do you have an opinion to a reasonable degree of medical probability that Mr. Muti would have survived a surgical procedure on February 6th or 7th had one been done to repair his tracheal tear? A. I believe he would have, yes. To a reasonable degree of medical probability, I think that he would have survived and the subsequent problems that he had, which proved life-threatening, would have been alleviated.

Q. And what, Doctor, do you rely upon for that opinion? A. Excuse me? I’m—what do I rely on for that opinion? Q. Yes, sir.

A. I think you mentioned my 40 years of training and the literature— Q. Do you depend on anything else? ⁵⁷¹ A. And the lit—I’m sorry—and the literature of medias-tinitis and the literature of pneumomediastinum. Dr. Karetzky further opined that Mr. Muti’s respiratory and pulmonary problems are not normally associated with his preexisting conditions and that the incidence of respiratory failure following coronary artery bypass surgery is less than five percent. The circuit court heard appellee’s motions to dismiss and for summary judgment on October 2, 2009. The court first heard and granted appellee’s motion to dismiss, ruling as follows: Okay.

The Court is going to grant the motion to dismiss. The Court is going to grant it for several reasons. Well, actually, not really. I shouldn’t say for several reasons, for one reason.

Maryland Rule 15-1001(b) states that in a wrongful death case that all persons who are or may be entitled by law to damages by reason of the wrongful death shall be named as plaintiff whether or not they are joined in the action. The words “to the use of’ shall precede the name of any person named as a plaintiff who does not join in the action. And in fact, because of the way the Rule is stated, although this is not a motion to dismiss, this is a—oh, yes, it is a motion to dismiss. Actually, this could have been a motion for summary judgment at this point, but it could be considered—I mean, because substantively it is an issue and that person is clearly a necessary party.

And actually the fact that plaintiffs may or may not have known where he is located, first of all, there’s nothing before the Court by way of evidence to show that. There’s counsel’s statement but there’s no affidavits or other things to show that. So that issue is not before the Court. But, even if it were, even if that were the issue, as I said, I mean, at the start of the case obviously they would have named him and said we’re in the process of looking for him and everyone would have been on notice about that and that was not what happened here. ⁵⁷² Also, the reason for that is the Court in applying the law is not to look to say [sic] whether or not this will make it difficult for one party or the other if the law says that this is the result is going to be.

So, that motion will be granted. The circuit court then entertained arguments on appellee’s motion for summary judgment. At their conclusion, the court ruled: The Court rejects plaintiffs theory that in this—the context of this case that it would be sufficient to go to the jury to have Doctor Macalary [sic] say there was a breach of the standard of care on January 21st or the date, if I have it right, the date of the first intubation.... January 20th, to have it—there was a breach of the standard of care on January 20th without giving any causation and there’s no testimony that has been directed—this Court’s attention has been directed to that is part of this record that he gave any testimony on causation.

And to have a second expert say no, the tear occurred on February 6th with no testimony from that expert that on February 6th there was a breach of the standard of care that created the tear. And to have testimony from plaintiffs [sic] own experts that the tear could have occurred for a series of reasons. Let me see. I wrote them down.

That any foreign— plantiffs [sic] expert testified that any foreign object could cause the injury, that it was not possible to rule out the fiberoptic bronchoscope as a cause of the injury, that the injury could occur spontaneously, that the injury is a known and reported risk associated with accessing of the airway, the injury is a known and reported risk of endotracheal intubation and the injury is not always caused by negligence.[ ] Because of that—and in [Meda v. Brown ] is just simply circumstantial evidence. I mean, what the Court is saying is that the fact that a case is a medical malpractice case doesn’t stop it from being circumstantial evidence. But that ⁵⁷³ is not circumstantial evidence. In fact, to the contrary.

Plaintiffs’ experts actually rebut it. So, those two together could not somehow give the jury an either/or choice that it having [sic] taken place either one. And there is no testimony—there certainly is under no circumstances any testimony that ties up any causation to a breach of the standard of care. First of all, as I said, Doctor Macalary [sic] is not at all— he doesn’t give—he doesn’t give a causation.

And then the second expert, which is Doctor—I forget his name but the second expert— MS. MACDONALD: Karesky [sic], Your Honor. THE COURT: Doctor Kare[t]sky who said he didn’t believe the February 6th intubation was negligent that instead, that the issue was what took place between February 6th and February 9th. And even as to that he testified—wait.

He said that required surgical repairs, that the failure was a failure of the surgeon to repair. But there was no testimony that a surgeon breached the standard of care. And Doctor Kare[t]sky made it clear that he was not in a position to say that the surgeon breached the standard of care because that was not within his area of expertise and based upon his testimony as well as Maryland case law and Maryland Courts and Judicial Proceeding Code Annotated Section 2(a)02(c)(l), he would not have been permitted to testify about it anyway based upon what he described as his experience. The circuit court subsequently issued orders that dismissed appellants’ wrongful death claims without leave to amend and granted summary judgment to appellee on the remaining survival claim. 4 Appellant filed timely notice of this appeal on October 30, 2009. ⁵⁷⁴ Discussion I. Appellants first argue that the circuit court erred when it dismissed their wrongful death claims without leave to amend.

Appellee argues that the trial court did not err because appellants did not move to amend their pleadings, and that dismissal with prejudice was the proper result. Maryland Code (1974, 2006 Repl. Vol. I), § 3-904 of the Courts and Judicial Proceedings Article (“CJP”) governs wrongful death claims and provides: (a) Primary beneficiaries.—(1) Except as provided in paragraphs (2) and (3) of this subsection, an action under this subtitle shall be for the benefit of the wife, husband, parent, and child of the deceased person.

(c) Damages to be divided among beneficiaries.—(1) In an action under this subtitle, damages may be awarded to the beneficiaries proportioned to the injury resulting from the wrongful death. (f) Restriction to one action under this subtitle.—Only one action under this subtitle lies in respect to the death of a person. ⁵⁷⁵ (g) Action to commence within three years; deaths caused by occupational disease.—(1) Except as provided in paragraph (2) of this subsection, an action under this subtitle shall be filed within three years after the death of the injured person. Pleadings in wrongful death claims fall under Maryland Rule 15-1001, which states, in relevant part: (b) Plaintiff. If the wrongful act occurred in this State, all persons who are or may be entitled by law to damages by reason of the wrongful death shall be named as plaintiffs whether or not they join in the action.

The words “to the use of’ shall precede the name of any person named as a plaintiff who does not join in the action. Here, there is no dispute that the plaintiffs estranged son, Ricky Muti, is a person who “may be entitled by law to damages by reason of the wrongful death” under CJP § 3-904. 5 There is also no dispute that Ricky Muti was not named as a plaintiff or “use plaintiff,” as required by the Maryland Rules of Procedure. Rule 15—1001(b) does not, however, provide a specific remedy in such a case. Thus, in accordance with Rule 1-201, the trial court “may compel compliance with the rule or may determine the consequences of the noncompliance in light of the totality of the circumstances and the purpose of the rule.” See Jones v. Prince George’s County, 378 Md. 98, 117 , 835 A.2d 632 (2003) (“standing to bring a wrongful death action is a procedural matter to be covered by rules and not an issue of substantive law”).

We therefore turn to precedent to determine whether the trial court abused its discretion when it dismissed appellants’ claims with prejudice. See Gaetano v. Calvert County, 310 Md. 121, 126 , 527 A.2d 46 (1987) (trial court abused its discretion when it dismissed claims without considering the factors of Rule l-201(a)). ⁵⁷⁶ The decedent in Walker v. Essex, 318 Md. 516, 518 , 569 A.2d 645 (1990), was survived by his two infant sons, each from a different mother. 6 The mother of one son agreed to settle with the defendants’ insurer, who was unaware of the other son. Id. The insurer contested the arrangement upon learning of the other son, but the trial court enforced the settlement agreement by entering a judgment against the defendants.

Id. The Walker Court “considered whether the settlement by one wrongful death beneficiary requires the consent of the other joined beneficiaries or the approval of the court.” Id. The Court began by briefly reviewing the history and intent of Maryland’s wrongful death statute: “The common law not only denied a tort recovery for injury once the tort victim had died it also refused to recognize any new and independent cause of action in the victim’s dependents or heirs for their own loss at his death.” Prosser & Keeton on Torts § 127 at 945 (W. Page Keeton 5th ed. 1984). In response to this harsh rule, the English legislature created a cause of action for wrongful death by enacting the Fatal Accidents Act of 1846, also known as Lord Campbell’s Act. 9 & 10 Viet. c. 93.

Every American state subsequently adopted its own wrongful death statute. 2 S. Speiser, Recovery for Wrongful Death 2d Appendix A (1975,1988 Supp.). In 1852, Maryland adopted a statute strongly resembling Lord Campbell’s Act. 1852 Maryland Laws Chapter 299. Currently, the relevant section of the wrongful death subtitle states: (f) Restriction to one action under this subtitle.—Only one action under this subtitle lies in respect to the death of a person. Cts. & Jud.Proc., § 3-904(f).

We have often stated the purpose of the one action rule is to protect a defendant from ⁵⁷⁷ being vexed by several suits instituted by or on behalf of different equitable plaintiffs for the same injury, when all the parties could be joined in one proceeding. 318 Md. at 522-23 , 569 A.2d 645 . The Walker Court then explained that while the English statute vested the cause of action in the decedent’s estate, under Maryland law the suit is brought in the name of a person entitled to recover, to the “use of’ any other interested