Pepper v. Johns Hopkins Hospital

SALMON, Judge. Travis Pepper (“Travis”), a minor, and his parents, Linda and Terry Pepper (“the Peppers”), individually and as next friends of Travis, filed a complaint in the Circuit Court for Baltimore City on March 24,1993 alleging that appellee, Johns Hopkins Hospital (Hopkins), was negligent in its care and treatment of Travis in 1987. At the request of Hopkins, the trial court granted a motion in limine that had the effect of precluding the introduction of any evidence of medical expenses incurred by Travis as a result of Hopkins’s claimed negligence. After a two-week trial, the jury found that Hopkins had been negligent. 1 The jury awarded Travis $750,000 for non-economic damages, which was reduced to $350,000 pursuant to the statutory cap. 2 The jury did not award future ⁵⁷ lost earnings because it determined that Travis would not “live to an age at which a person could ordinarily become gainfully employed.” Linda and Terry Pepper, as parents and next friends of Travis, filed this timely appeal and ask the following questions, 3 which we have rephrased for clarity: I. Did the trial court err by granting appellee’s motion in limine?

II

Did the trial court err by precluding appellants’ expert from testifying as to Travis’s life expectancy while allowing appellee’s expert to testify? We answer the first question in the affirmative and the second in the negative, and we remand this case for a new trial on the issue of Travis’s medical expenses only. FACTS Travis was born on January 6, 1987 with severe heart and circulatory problems. He had a narrowing of the opening between the pulmonary artery and the right ventricle, which resulted in decreased levels of blood flowing into his lungs.

He also had a hole in the wall of his heart between the left and right ventricles. In medical parlance, Travis suffered from tetralogy of Fallot with pulmonary atresia. Travis’s doctors at Hopkins suggested two stages of surgery to correct these problems. First, he would undergo right ventricular out-flow tract reconstruction to increase the flow of blood from his ⁵⁸ heart through his pulmonary artery.

A second surgery would repair the hole in his heart. Travis underwent the right ventricular out-flow tract reconstruction at Hopkins on April 15, 1987. He developed postoperative complications resulting in severe neurological impairment. He has not undergone the second surgery.

The Peppers filed a six-count complaint against Johns Hopkins on March 23, 1993, almost six years after the surgery. Count I was a negligence action, brought by Travis, “by and through his Parents,” which alleged that Hopkins was negligent in performing the surgery on Travis at such a young age and in failing to recognize and treat his post-surgery complications. Count I included the following allegations: As a direct and proximate result of the negligence of Defendant Hospital, Travis suffered and will continue to suffer permanent and severe damages to his body and nervous system, including but not limited to, severe lack of vision, seizures, severe cerebral palsy, anoxic encephalopathy, spastic quadriparesis, brain damage, severe mental and motor retardation, spasticity, loss of mobility, and other related disabilities, which have in the past necessitated and will in the future necessitate expenses for: physical therapy and testing, frequent medical evaluation and care, medical treatment, special functional instruction and personal attendance and care. As a direct and proximate result of the negligence of the defendants [sic] ..., Travis will, upon attaining maturity, suffer loss of earnings and impairment of earning capacity and other pecuniary and/or economic damages.

Further ... Travis has suffered and will in the future suffer the loss of ability to lead a normal life, pain, suffering, mental anguish, embarrassment, humiliation and disfigurement, all of which is permanent, and other injuries and damages. WHEREFORE, Plaintiff, Travis Pepper, by and through his Parents, Guardians, and Next Friends, Terry and Linda Pepper, bring this action against the Defendants and claim ⁵⁹ compensatory damages ..., costs and such other and further relief as the Court may deem necessary and proper. Counts II and III were negligence causes of action brought by Linda and Terry Pepper, respectively, for Travis’s medical expenses; counts IV and V alleged lack of informed consent by Travis and the Peppers, respectively.

The final count, also captioned count V, alleged loss of consortium by the Peppers. Hopkins filed a motion for partial summary judgment on June 2, 1993, alleging that the Peppers’ claims were time-barred. The trial court granted the motion as to counts II, III, and both counts V (lack of informed consent and loss of consortium). Thus, only Travis’s claims for negligence and lack of informed consent were left after the grant of partial summary judgment.

Appellants filed an amended complaint on June 13, 1994. The amended complaint included an allegation, appended to Travis’s claim for negligence, that “Travis’ parents, Terry and Linda Pepper, are financially unable to provide for the past and future care and treatment Travis will require and need as a direct and proximate result of the negligence of the Defendant, its agents, servants and/or employees.” Hopkins filed a motion to strike, arguing that the amended complaint “was filed much too late and well after the time set by this Court for providing notice of any intent to amend. Discovery is closed and there is no time in which to start over.” 4 The trial judge granted the motion to strike on June 23,1994. On the first day of trial, July 11, 1994, Hopkins’s counsel orally made a motion in limine requesting that “no evidence of medical expenses ... go the jury because they are irrelevant to any recovery.” Hopkins argued that a cause of action for recovery of any medical expenses already incurred and those expected to be incurred in the future belonged to the Peppers and, therefore, evidence of medical expenses was irrelevant to Travis’s causes of action, the only ones left at ⁶⁰ trial.

Appellants countered by asserting that Travis had a cause of action to recover his medical expenses, comprising 90 percent of the damages alleged in the suit, and that the evidence as to those expenses should be considered by the jury. The trial judge granted the motion in limine the following day. The case proceeded to trial on the issues of liability and damages, which were limited to Travis’s lost future income and non-economie damages. DISCUSSION I. Appellants are not appealing the trial court’s grant of the motion to strike the amended complaint.

Appellants frame the first issue presented as whether the trial judge erred in granting Hopkins’s motion in limine. Once a party has made a motion in limine requesting that certain evidence be kept from the jury, the appropriate response by the opposing party is a proffer of the evidence that it seeks to introduce. Lewis v. State, 71 Md.App. 402, 414 , 526 A.2d 66 (1987); Standifur v. State, 64 Md.App. 570, 578-79 , 497 A.2d 1164 (1985), aff'd, 310 Md. 3 , 526 A.2d 955 (1987). We find that appellants responded to the motion with a legally adequate proffer.

Thus the issue was appropriately preserved for review, and Hopkins does not contend otherwise. 5 ⁶¹ A. Pre-Majority Expenses It is well settled that when a minor is negligently injured two separate causes of action arise: the minor child has one for the injuries he or she suffered, and the parent of the minor child has one for medical expenses incurred by the parent for treatment of his or her child’s injuries. Garay v. Overholtzer, 332 Md. 339, 346 , 631 A.2d 429 (1993). Generally, the minor child does not have a cause of action for his medical expenses because the “parents possess the exclusive right to recover a minor’s pre-majority medical expenses.” Id. at 367 , 631 A.2d 429 . Hopkins argued in support of its motion in limine that medical expenses could not be recovered by Travis because he is not liable [for such expenses] and he never will be liable.

You have to be liable to recover it as an element of damages. ... The only claim we have here [after the partial summary judgment] is by this child, and the law says this child is not entitled to recover medical expenses because he is not now and never will be liable for them, period. The law in Maryland is that there are four exceptions under which a minor may have a cause of action to recover his medical expenses: ⁶² (1) when the minor child has paid or agreed to pay the expenses, (2) when the minor child is legally responsible for payment, such as by reason of emancipation, or the death or incompetency of his parents, (3) when the parents have waived or assigned their right of recovery in favor of the minor child, or (4) when recovery of expenses is permitted by statute. Id. at 366 , 631 A.2d 429 (footnote omitted).

The first, second and fourth exceptions noted above give a minor child a separate and distinct claim for his medical expenses. Id. at 366-67 , 631 A.2d 429 . Generally, contractual obligations of minors are voidable. McBriety v. Spear, 191 Md. 221 , 60 A.2d 528 (1948).

Under the doctrine of necessaries, however, a minor is hable for the value of necessaries furnished to him or her, and a minor’s contract is not voidable. Monumental Bldg. Ass’n v. Herman, 33 Md. 128 (1870). In Maryland, parents have a statutory duty to support and care for their children.

Md.Code (1984, 1991 Repl. Vol.), § 5-203(b) of the Family Law Article (“FL”). 6 This statutory duty partially abrogates the doctrine of necessaries, making parents liable for the value of necessaries provided to their minor children. See Garay, supra, 332 Md. at 369 , 631 A.2d 429 . Medical care is embraced within the scope of this statutory duty of parents to support their minor children.

See, e.g., Kennedy v. Kennedy, 55 Md.App. 299 , 462 A.2d 1208 (1983). Nevertheless, the Court of Appeals stated in Garay that the doctrine of necessaries is sufficient to hold a minor child liable for medical expenses incurred by him or her if it can be shown that his or her parent is unwilling or truly unable to pay them. This liability will, in turn, give a minor the right to claim medical expenses on his or her own behalf. It ⁶³ would be manifestly unjust to hold a child liable for medical expenses but to deny that child the opportunity to recover those expenses from a wrongdoer. 332 Md. at 371 , 631 A.2d 429 . “[I]f it can be shown that the minor’s estate has paid or is responsible to pay for any premajority medical expenses, this claim is also vested in the minor.” Id. at 374 , 631 A.2d 429 .

Thus, if the minor child meets his burden of showing that his parents are unable or unwilling to pay his medical expenses, and that he has paid or will be responsible for paying such expenses, he may make a claim for them. Appellants argue that the Peppers are unable and unwilling to pay for Travis’s care. Therefore, Travis may become personally liable for these expenses, giving him a cause of action under the second Garay exception. 7 The trial judge granted appellee’s motion in limine because she found that the Peppers had not met their burden of showing they were unable or unwilling to pay for Travis’s future medical expenses. Appellants filed a written “Opposition to Defendant’s Motion in Limine Re: Medical Expenses” on July 12, 1994, and a “Supplemental Memorandum in Support” on July 13, 1994. ⁶⁴ On July 19, 1994, before they rested their case, appellants made still another proffer.

Appellants attached to the July 13 memo excerpts of deposition testimony by Dr. Malak Derakshani and economist Manuel R. Smith; affidavits from Mr. Smith and the Peppers; the Peppers’ tax return; and their insurance policy. We look at the information in the July 13 memo and July 19 proffer in deciding whether the Peppers made a legally adequate proffer because the trial judge repeatedly told the Peppers that she would consider additional material as submitted by the Peppers. The trial judge said, “If you can ... put together something more compelling than what I have already heard and seen, I will gladly take a look at that.” Appellants did proffer evidence to the trial judge that they were unable to pay for Travis’s future medical care. According to the July 13th proffer, Linda Pepper no longer works outside the home because she must be home to care for Travis; Terry Pepper earns $20,795 a year working at his own business as an automobile mechanic; after paying taxes, the Peppers have a net monthly income of $1,537.75, which is well short of their monthly expenses of $2,289.

The Peppers do not have an individual savings account. They hold in their names, as parents of their older son, Tyler, age 10, a savings account worth about $18,000, which is designated as his college fund. They have an account in Travis’s name containing about $1,700, comprised of gifts given to him. Mr. and Mrs. Pepper each hold about $9,000 in individual retirement accounts, which represent the only retirement funds they have available.

According to the materials set forth in the proffer, Mr. Pepper’s income and the combined savings of the Peppers are insufficient to pay for all of Travis’s future medical needs. The child has limited vision, severe cerebral palsy, partial motor paralysis of all four limbs, brain damage, severe mental and motor retardation, and spasticity. He cannot stand or sit up without assistance. In fact, he requires assistance with all of his activities of daily living.

Appellants proffered that ⁶⁵ Travis needs a wide range of medical, rehabilitative, and therapeutic services, which, as of the date of trial, he was not receiving. Appellants proffered deposition testimony of Dr. Derakshani, who opined that Travis needed a van with a lift, a wheelchair and other devices to assist him in standing and sitting, an electric bed, frequent physical therapy, and home modifications. Dr. Derakshani also testified that Travis needed daily medication and yearly muscle surgery. Raphael Minsky, a special rehabilitative psychologist, affirmed by affidavit that Travis needs physical therapy three times a day; occupational and speech therapy once a week; and vision services once a month.

He also needs lifting and positioning devices, such as a prone stander, bath chair, wheelchair, and electric hospital bed, because his mother has difficulty lifting and moving him. According to Dr. Minsky, the Peppers’ home needs to be modified to accommodate a disabled person. Appellants further proffered that Travis was not receiving necessary medical services and equipment. He was not receiving physical, speech, occupational, hydro, or vision therapies because the Peppers could not afford those services.

The Peppers did not have much of the equipment they needed for Travis, including a wheelchair, electric bed, shower chair, and a prone stander. The Peppers also proffered deposition testimony and an affidavit of an expert economist, Mr. Smith, who opined that the total present value of “Travis’s medical, home attendant care, transportation, therapeutic, and equipment and supplies needs” for the remainder of his life was in excess of $7,600,-000. Most of these expenses, which average about $117,000 a year, are not covered by the Peppers’ insurance policy. For example, the Peppers’ insurance does not cover home nursing, ambulatory apparatuses, home modifications, durable medical equipment for home use, long-term (ie., lasting more than sixty days) physical, speech or occupational therapies, and ⁶⁶ vision training. 8 The Peppers proffered that they were unwilling to provide for Travis if it meant either selling their home 9 to pay for his medical expenses or tapping into their retirement accounts and Tyler’s college fund.

On July 19, 1994, at trial but outside the hearing of the jury, the Peppers proffered that they would have testified as to their income and financial inability and/or unwillingness to afford and/or provide Travis with the necessities his physician said he will need to survive. They also would have testified that the insurance policy that they had with the Delmarva does not provide for any of the services Travis requires such as physical therapy, hydrotherapy, occupational, speech, vision therapy, home health aid and, after he reaches—becomes an adult, the educational services that would go on. It does not cover durable medicals, does not cover but a small amount of prescriptions and office visits. I think it’s all but $10.00 at this time.

And does not cover the—over 95% of all of the items that his— . Dr. Derakshani and Dr. Minsky indicated would—would have indicated, to a reasonable degree of medical certainty, were necessary for this patient. Emmanual Smith is an economist and if permitted to testify, he would have testified to a reasonable degree of economic probability that the education, medical care and other related expenses related to Travis Pepper, [as stated by Dr. Derakshani and Dr. Minsky,] would have exceeded $7.4 million, all of which would have been deemed necessary for this patient, which the Peppers could not afford. ⁶⁷ We hold that the Peppers made a sufficient proffer that they were unable and/or unwilling to pay for Travis’s future medical expenses. Hopkins’s proffer was not as substantial.

Counsel for Hopkins stated that “somewhere in here [Mrs. Pepper’s deposition] she essentially said that with the exception of $10 deductibles and $20 deductibles here and there, that essentially all of the bills to date had been covered by insurance.” Later, appellee argued, “Because the Peppers told us in discovery that they could afford Travis’ needs and had good insurance to pay for it, we did not push further discovery on that point.” 10 Finally, the following exchange must be noted: THE COURT: How are the durable medical costs being paid at this time? [COUNSEL FOR APPELLANTS]: They are paying it out of pocket. [COUNSEL FOR APPELLEE]: That is the point, Your Honor. The trial judge, in ruling on the motion in limine, stated: The question is whether or not this case falls within the necessaries exception [of Garay v. Overholtzer, 332 Md. 339 , 631 A.2d 429 (1993) ] in which the parents would have to be unable or unwilling to pay. There certainly is no indication of any unwillingness to pay. The question is whether or not the minor child can show—and that is the way the case reads—that the parents are unable to pay. ⁶⁸ ____ [I]n fact [his] expenses are being paid in some part.

The durable medicals are being paid out of pocket, apparently, I do not doubt at some great strain---- ... [OJther expenses are being covered by virtue of whatever the insurance is that the parents provide. And ... there is a fund for [sic] which there are resources available, apparently. So I cannot find from what I have heard to this point that there is [a] showing that these folks are within the category of indigent persons. This is a family, at least the father of which, I am told, has his own business that is a running, going operation.

So absent some further, more compelling evidence to show me that they are within the class of persons who would be characterized as unable to pay, then the Defendant’s Motion in limine with respect to medical expenses is granted. (Emphasis added.) The Peppers’ insurance policy provides bare bones coverage for the expenses Travis is already incurring and does not cover at all treatment that his doctor says he needs but is not receiving.' The Peppers may be paying for the medical treatment Travis currently receives; however, based on the proffer, a jury could find that he is not getting the medical care that he needs. A jury issue was presented by the evidence set forth in the Peppers’ proffer. We find that the trial judge erred in granting the motion in limine.

B. The Complaint Appellee impliedly argues that Count I was insufficient to state a claim upon which relief could be granted insofar as future medical expenses are concerned because of the manner in which Travis’s damages were pled in that count. 11 Count I of the original complaint does allege that ⁶⁹ Travis suffered and will continue to suffer permanent and severe injuries “which have in the past necessitated and will in the future necessitate expenses for: physical therapy and testing, frequent medical evaluation and care, medical treatment, special functional instruction and personal attendance and care.” Although a pleading should not contain unnecessary evidence, it does need to contain “such statements of fact as may be necessary to show the pleader’s entitlement to relief.” Md. Rule 2-303(b). The Rule expresses the requirement laid down in Fletcher v. Havre De Grace Co., 229 Md. 196, 200 (1962), that the subject matter of a claim must be stated “with such reasonable accuracy as will show what is at issue between the parties, so that, among other things, the defendant may be apprised of the nature of the complaint he is required to answer and defend.” Fischer v. Longest, 99 Md.App. 368, 380 , 637 A.2d 517 , cert. denied, 335 Md. 454 , 644 A.2d 488 (1994). Travis alleged that Hopkins had a duty toward him, that it breached that duty by mishandling him both pre- and post-operatively, that the breach caused injuries to him, and that he was entitled to damages as a result, including medical expenses. Admittedly, the damages were pled in a conclusory fashion.

If appellee desired specifics, it should have filed a motion for a more definite statement. 12 See General Fed. Constr., Inc. v. D.R. Thomas, Inc., 52 Md.App. 700, 705 , 451 A.2d 1250 (1982). Appellee also could have made a motion to dismiss for failure ⁷⁰ to state a claim upon which relief can be granted. 13 Appellee, however, never made either motion. Accordingly, that argument is waived. C. Post-Majority Expenses The trial judge also held that Travis had no claim for post-majority medical expenses because, “[i]n effect, this child will never be emancipated He will be[,] under Presley v. Presley, a child who is always dependent on his adult parents.” As demonstrated below, this holding involves circular reasoning, ie., Travis has no cause of action for post-majority expenses; therefore, he will be dependent on his parents.

This begs the question of whether he does have a cause of action for post-majority medical expenses. If he does, then Hopkins would be required to pay those expenses, and he obviously would not be dependent on his parents for the cost of post-majority medical care. As already noted, a minor generally does not have a cause of action for medical expenses because the “parents possess the exclusive right to recover a minor’s pre-majority medical expenses.” Garay, supra, 332 Md. at 367 , 631 A.2d 429 . Parents do not, however, have the primary responsibility for post-majority medical expenses of their children.

An adult child is primarily liable for his or her own medical expenses. Appellee argues, however, that FL § 13-102 14 ⁷¹ abrogates this principle for a destitute incompetent adult, making the incompetent adult’s parent responsible for his or her food, shelter, care, and clothing. This Court held in Presley v. Presley, 65 Md.App. 265 , 500 A.2d 322 (1985), that the duty of support, which arises “when the child has insufficient resources and, because of mental or physical infirmity, insufficient income capacity to meet his reasonable living expenses,” may be enforced in equity. Id. at 277-78 , 500 A.2d 322 (emphasis in original).

As noted above, the trial court relied on Presley, supra, in denying Travis’s claim for his post-majority expenses. This reliance was misplaced, because nothing in Presley or in the statute makes a parent primarily liable for the medical expenses of an adult child. Section 13-102(b) of the Family Law Article places upon an adult child’s parents a contingent responsibility for the adult child’s medical expenses if the adult child is destitute and cannot pay them. This criminal statute does not purport to take away anyone’s civil cause of action.

Furthermore, the contingent responsibility would not normally be expected to come into play if injury is caused by the negligence of a solvent third party and if the tort system works as it should. Tort recovery is designed, inter alia, to prevent an injured party from becoming destitute and a burden upon innocent third parties. Hopkins is responsible for the fair, reasonable, and necessary cost of Travis’s post-majority medical expenses caused by its negligence. Having been adjudged negligent, Hopkins can be expected to pay any damages that a jury assesses against it for such future post-majority medical expenses.

When Travis collects these damages, plus the $350,-000 already awarded, there is no reason to believe that Travis ⁷² will