Raitt v. Johns Hopkins Hospital

Orth, C. J., delivered the opinion of the Court. On 31 August 1972 ANNA M. RAITT and HERMAN J. RAITT, her husband, appellants, filed a tort action in the Baltimore City Court against THE JOHNS HOPKINS HOSPITAL and ANDREW C. W. MONTAGUE, M.D., appellees. The basis of the suit was medical malpractice. On 19 October appellees pleaded the general issue.

On 17 November, at the suggestion of appellees, the case was removed to the Circuit Court for Montgomery County. Maryland Rule 542. On 20 January 1974 it came on for trial before a jury, and, at the close of the evidence offered by appellants, the court granted appellees’ motion for a directed verdict. Rule 552.

On 4 February judgment was entered in favor of appellees for costs. Appellants noted an appeal the next day. THE LA W RELA TING TO MEDICAL MALPRA CTICE (1) A physician is presumed to have performed his medical duties with care and skill. State, Use of Janney v. Housekeeper, 70 Md. 162 .

See Fink v. Steele, 166 Md. 354 ; McClees v. Cohen, 158 Md. 60 . The presumption is rebuttable, and the failure to exercise requisite care or skill is tortious in nature. Benson v. Mays, 245 Md. 632 . The want of the requisite care or skill in the performance of medical duties being negligent, a physician is liable for injuries directly caused thereby.

The doctrine of res ipsa loquitur does not apply to medical malpractice, and the mere fact that an unsuccessful result follows medical treatment is not of itself evidence of negligence. Johns Hopkins Hospital v. Genda, 255 Md. 616 ; Bettigole v. Diener, 210 Md. 537 . See Nolan v. Dillon, 261 Md. 516 ; Lane v. Calvert, 215 Md. 457 . Therefore, the aggrieved party must show both a lack of the requisite care or skill on the part of the physician and that such want of care or skill was a direct cause of the injury; if *? proof of either of these elements is lacking the case is not a proper one for submission to the jury.

State, Use of Kalives v. Baltimore Eye, Ear and Throat Hospital, 177 Md. 517 ; Angulo v. Hollar, 137 Md. 227 . The issue of professional care or skill . . is generally a topic calling for expert testimony only . . . .” Fink v. Steele, supra, at 361, quoting Wigmore on Evidence (2d Ed.), § 2090; Thomas v. Corso, 265 Md. 84, 97 . 1 Thus, it is necessary that parameters be established through which the standard of care or skill may be expressed. We find these parameters clearly established in Maryland. The performance of the professional duties of a physician-defendant is tested by the amount of care or skill exercised generally by physicians engaged in the same field or specialty at the same time in the locality or community in which the physician-defendant was practicing.

State, Use of Solomon v. Fishel, 228 Md. 189, 195 . We summed it all up in Dunham v. Elder, 18 Md. App. 360 , 363: “In proving a malpractice case in Maryland, a plaintiff has the burden of proving: (1) the standard of medical skill and care ordinarily exercised in the particular locality; (2) a failure to observe that standard on the part of the physician-defendant; and (3) a showing that the defendant’s failure to observe the proper standard was a direct cause of the injuries about which his patient complains in the malpractice action.” (2) It is Dunham which gives rise to the primary issue on this appeal. The parties seem satisfied that the established law in Maryland is that the care or skill of the physician-defendant is to be measured against the amount ²⁰⁰ of care or skill exercised generally by physicians engaged in the same field in the community in which the physician-defendant performed the duties alleged to be improper. They accept that Dunham did not change the existing rule; that the physician-defendant’s conduct is to be measured against the standard of care or skill in the defendant’s own community. 2 But where they are at odds is with respect to the qualifications of the expert witness who maji testify with respect to that standard.

Appellants say that what is required is that the expert be familiar with the local standard. Appellees claim that the teaching of Dunham is that the expert must have gained his knowledge by practicing or residing in the community involved. The trial court also so construed Dunham. 3 Dunham does not so hold. ²⁰¹ In State, Use of Janney v. Housekeeper, supra, at 172, the Court found no error in the grant of a prayer which told the jury that “. . . the degree of care and skill required is that reasonable degree of care and skill which physicians and surgeons ordinarily exercise in the treatment of their patients . . . .” In Dashiell v. Griffith, 84 Md. 363, 380-381 , the Court observed: “The cases are generally agreed upon the proposition, that the amount of care, skill and diligence required is not the highest or greatest, but only such as is ordinarily exercised by others in the profession generally.” But the trial court had granted a prayer which told the jury that if they “. . . find from the evidence that . . . said amputation [of plaintiffs finger] was rendered necessary by the want of such reasonable skill, care and diligence in the treatment of said finger and of the said plaintiff, as is usually exercised by physicians and surgeons in good standing in the defendant’s school of practice in this locality, then their verdict must be for the plaintiff.” At 364 (emphasis supplied). 4 In any event, in State, Use of Solomon v. Fishel, supra, the Court explicitly impressed the locality restriction on the degree of care and skill test, stating, at 195: “The first question then with regard to the defendant’s liability is whether or not he did fail to exercise the amount of care, skill and diligence as a physician and surgeon which is exercised generally in the community (the City of ²⁰² Baltimore) in which he was practicing by doctors engaged in the same field. 5 See Lane v. Calvert, 215 Md. 457, 462 , 138 A. 2d 902 , and cases therein cited.” 6 We find no departure by the Court of Appeals from the Fishel qualification to the Housekeeper standard. The qualification was expressly affirmed in subsequent cases.

For example, in Tempchin v. Sampson, 262 Md. 156 , stating that the liability of an optometrist to a patient is to be tested by standards analogous to those used to test physicians and surgeons, the Court used the Fishel language in expressing the standard — “whether or not he did fail to exercise the amount of care, skill and diligence as [an optometrist] which is exercised generally in the community ... in which he was practicing by [other practitioners] in the same field.” At 159. In Thomas v. Corso, supra, at 97, the Court observed that “. .. in many medical malpractice cases expert testimony is required to be introduced by the plaintiff to establish the standard of care in the locality involved . . . .” In Kruszewski v. Holz, 265 Md. 434, 438 , the Court said: “At trial both sides agreed, as they should, that Dr. Holz was required to adhere to the same standard of care in treating his patients as was practiced by other physicians engaged in this specialty in the community.” In those cases in which the locality qualification was not expressly included in stating the test, it appears that the standard was in fact applied in terms of the locality or community or that locality was not an issue. So in Nolan v. Dillon, supra, where, although the degree of care and skill was set out in the words of Dashiell v. ²⁰³ Griffith, supra, 7 the expert testified that the medical treatment by the defendant-physician, who practiced in Montgomery County, was . . not in conformity with the usual standard of skill and care ordinarily exercised by a physician specializing in obstetrics and gynecology, practicing in Montgomery County.” 261 Md. at 535 . Dunham is not to be read as other than following the rule firmly established by the Court of Appeals.

When we pointed out in Dunham that the experts offered had never been licensed to practice in Maryland, and had never practiced in this Stat.e, treated patients, enjoyed privileges in any hospital in Maryland or maintained an office here, we were not impressing additional requirements on the qualifications required by an expert to testify on the matter of local care or skill. We were merely noting the background of the physicians involved; we were not holding that they could not be familiar with the standard of care or skill in the community unless they were licensed to practice in Maryland, and actually practiced, treated patients, maintained an office, and enjoyed hospital privileges in the locality. If the evidence is sufficient to show fairly to the reasonable satisfaction of the trial judge that the expert witness proffered is familiar with the local standard concerned, that witness, otherwise qualified, may testify as an expert with respect to the standard. We hold that the trial court, in ruling that the witnesses offered by appellants were not qualified as experts to give an opinion with respect to the standards of care of a physician in Baltimore City performing the particular surgical procedure involved, was wrong insofar as its ruling was based upon the fact that the witnesses proffered did not practice in the community in which the alleged negligent treatment occurred. ²⁰⁴ THE INSTANT CASE The Allegations The background of the suit as set out in the declaration instituting the action was that on 15 May 1972 Mrs. Raitt was confined as an outpatient of The Johns Hopkins Hospital by Dr. Montague for the purpose of undergoing a laparoscopy tubal ligation.

After the operation she was in the care of hospital personnel, Dr. Montague not being present. She was in severe pain but was assured she was free to leave the Hospital the same day. She complained to various physicians and nurses that she was unable to leave because of the intensity of the abdominal pain but was assured by duly authorized employees of the hospital that her complaints were usual and customary after being subjected to the procedure she had just received. Her departure was “against her wishes and in spite of symptoms and a physical condition suggestive of serious injury suffered during what was to have been a routine tubal ligation.” The pain persisted and she was returned to the hospital in the late afternoon of 16 May.

It was determined that “as a direct result of the attempted laparoscopy and tubal ligation,” she sustained “a perforation into the small intestine with resulting infectious process spreading throughout her body.” She declared that appellees were negligent in perforating the bowel, in not recognizing during the operation that the intestine had been perforated, and in failing promptly to repair the perforation. She alleged that the negligence was the failure “to exercise the usual standard of medical, surgical and hospital care exercised in the Baltimore community or indeed in the community of any large city in the United States.” On 17 May 1972 she underwent surgery to repair injury to the bowel, a portion of which had to be excised because of internal infectious process caused by the prior damage to it. She suffered from an overwhelming septic condition and from collapse of both lungs and developed blood clots which entered her lungs. She was confined in the hospital from 16 May to 24 June 1972.

On 7 July 1972 she returned to the hospital because of the development of possible blood clots in her left leg and was ²⁰⁵ caused to take a medication to thin the blood. Because of continuing deterioration of her health, she was confined at Temple University Hospital for study and treatment, and was released under a rigid adjustment of medications and schedule for daily living in order to control and prevent a worsening of her internal condition. She claimed $800,000 damages. Her husband claimed $100,000 damages for losses incurred and to be incurred as a direct consequence of the negligence of appellees.

The Evidence After opening statements of counsel, the outpatient record of Mrs. Raitt of 15 May 1972, her hospital chart “for various confinements from May 16, 1972 to June 22, 1972 and from July 4, 1972 to July 12, 1972” and the X-rays of her for the period 16 May to 7 July 1972 were received in evidence. They are not included in the record submitted to us. Appellants called Marshall Klavan, M.D. as an expert witness. He was examined as to his qualifications to render an opinion with respect to the community standard of care or skill in the field involved in the treatment of Mrs. Raitt.

Proffer was made as to the qualifications of other medical witnesses proposed to testify on the issue. When the court indicated it would find them not qualified, counsel said: “May it please the Court, in view of Your Honor’s indication that you are entertaining a ruling . . . that Dunham v. Elder would effectively keep out from testimony the expert opinion as to the standard of care of Dr. Klavan and Dr. Rodman, who is also from Pennsylvania, and Dr. Maurice Brown, also from Pennsylvania, then I make this proffer as to all three witnesses: “Dr. Klavan has already established his credentials as to his expertise. I have already indicated at the bench that the proffer would be that in addition to his certification by a Board which gives national certifying tests, ²⁰⁶ and one and the same organization which certified the Defendant in this case, Dr. Montague, that the proffer will be as to each and every expert that the Plaintiff intended to call; Dr. Klavan; Dr. Theodore Rodman, Associate Professor of Internal Medicine at Temple University; Dr. Maurice Brown, who has instructed in obstetrics and gynecology and is also a Board-certified obstetrician and gynecologist, that the standards of care in Maryland and, specifically, the Baltimore community on May 15th, 1972 with regard to the giving of a laparoscopy for tubal ligation and the subsequent follow-up care that there is no difference in the standard of care, be it Baltimore, New York, Philadelphia or the West Coast. “The testimony will be revealed through these witnesses, and it is so proffered, that they will testify that each of them have treated patients from the Baltimore area over a period of years, have of necessity had to secure hospital charts in connection with such treatment of such patients. “I omitted one doctor who was intended to be called, Dr. Richard Chodoff, and he goes along with this proffer. Dr. Chodoff is a former instructor in surgery at the Medical College of Pennsylvania and he had his internship in Baltimore and he will so testify that the medical care in the repair of a hole in the ileum such as in this case, that the standard of treating such injury, the surgical care and the medical care, follow-up is no different than it would be in Philadelphia or any other large city. “Further, all of these witnesses will testify to a knowledge of the standard of care that existed in the Baltimore community on May ²⁰⁷ 15th, 1972, although they didn’t practice here, being familiar with such standards of care by having treated patients from the Baltimore area, having reviewed their hospital charts and in some instances discussing the care with a prior Maryland physician, having attended meetings where physicians from Baltimore attended such meetings, reading publications distributed nationally dealing with the subject matter. “But, Your Honor, in this particular case, as this is a traumatic injury to the bowel caused by an inadvertent burning of the bowel by an electrical device, that the standard of care that existed in Baltimore and, indeed, in Philadelphia was that one does not anticipate such an injury, and that having, injured such a person the standard of care in repairing the bowel is done immediately, not 36 hours later. “That certain medications are given as a matter of basic medical knowledge; and “That such standards are not differing. “Now, in other words, Your Honor, that in substance is what all of my experts would say. “First, they will testify to an awareness of what the standard of care in this community was on May 15th, 1972; “Second, where there was a breach of such standard of care by the Defendant in this case; and “Three, that such negligence of the standard of care was based upon practical knowledge gained in the practice of medicine, not theoretically, but actually.” No other evidence was offered or proffered by appellants.

After the court ruled that the proposed witnesses were not qualified to testify as to the community standard of care or ²⁰⁸ skill, appellants rested their case. Whereupon each appellee moved for a directed verdict and each motion was granted. 8 Although appellants ask only whether the trial judge committed error in refusing to permit their “medical experts to testify on the question of ‘standard of care’ ”, the resolution of this appeal depends upon the propriety of the grant of the directed verdict in favor of appellees. Because the judge erred, as we have held, in finding that the appellants’ expert witnesses were not qualified to testify on the question of standard of care because they did not practice in Baltimore City, it does not necessarily follow that the direction of the verdict was improper as to each appellee. As we have indicated, the Court of Appeals has made abundantly clear that the evidence must “. . . show both a lack of the requisite skill or care on the part of the doctor and that such want of skill or care was a direct cause of the injury; and if proof of either of these elements is wanting the case is not a proper one for submission to the jury.” Lane v. Calvert, supra, at 462.

So we look to the evidence before the court at the time of the grant of the motions, and in deciding whether the motions for a directed verdict in favor of appellees were properly granted, we consider that evidence, together with all reasonable inferences which may be drawn therefrom, in a light most favorable to appellants. ²⁰⁹ Summit Loans Inc. v. Pecola, 265 Md. 43 ; Beach v. Woodward & Lothrop, Inc., 18 Md. App. 645 . ²⁰⁸ “MR. ELLIN [Counsel for Appellants]: The Plaintiff would rest, in view of Your Honor’s ruling. THE COURT: The Plaintiff must rest before a motion for directed verdict would be in order. MR.

ELLIN: I am responding to the Court’s ruling of barring my witnesses from testifying, so that the Plaintiff must rest. It is unable to go forward with this particular witness. THE COURT: I am not barring your witnesses from testifying. I am simply saying that in my opinion none of your proposed witnesses can qualify as experts to offer an opinion upon the standards of care of a doctor in Baltimore City performing this particular surgical procedure.

MR. ELLIN: That is what the case is about, so the Plaintiff rests. MR. KING [Attorney for Dr. Montague]: I move for a directed verdict.

MR. DONOVAN [Attorney for The Johns Hopkins Hospital]: I move for a directed verdict, Your Honor. THE COURT: I grant the motion for directed verdict.” ²⁰⁹ As far as the directed verdicts were concerned, we assume arguendo that the first element of proof to be met by appellants, that is that there was a lack of the requisite skill or care, 9 was prima facie established by the proffer of the testimony of their proposed witnesses. We have found that the judge was wrong with respect to his reason for holding that the witnesses were not qualified to testify on the issue, and, therefore, as to that element of the required proof, he erred in granting the motions.

But it was incumbent upon appellants to prove also that such want of skill or care was a direct cause of the injury. Johns Hopkins Hospital v. Genda, supra; State, Use of Kalives v. Baltimore Eye, Ear and Throat Hospital, supra; State, Use of Janney v. Housekeeper, supra. The proffer did not encompass this second element, nor was there other evidence offered by appellants sufficient to establish it.' 10 The rule is that if either of the elements is wanting the case is not a proper one for submission to the jury. OPENING STATEMENTS AS EVIDENCE In oral argument before us, appellants suggested that proof of a direct causal connection between the breach of the requisite standard of care or skill and the injury alleged was supplied by the opening statements of appellees’ counsel.

Counsel for the Hospital touched on the point in its brief, denying that his opening statement replaced the requirement that substantive evidence be produced at trial. The Law The fundamental purpose of an opening statement is “. . . ²¹⁰ to acquaint the judge and jury with the facts that counsel hopes and expects to prove .. ..” Hartman v. Meadows, 243 Md. 158, 162 . The Court made this statement in distinguishing an opening statement from argument, cautioning that counsel, in the ardor of advocacy, should not change the function of an opening statement into an opening argument, but should leave “the arguments until their proper time, later.” Idem. McLhinney v. Lansdell Corp. of Md., 254 Md. 7, 12-13 , pointed out, however, that in Hartman “.. . nothing was stated to indicate that its sole purpose was merely to make the judge and jury better informed about what counsel intended to prove.” The Court explained, at 13: “And further, to say that ‘an opening statement is not evidence’ is misleading.

It is correct insofar as statements made in an attorney’s opening comments cannot replace the requirement that substantive evidence be produced during the trial to establish counsel’s theory of the case. However, this phrase should not be interpreted to mean that an attorney, acting as his client’s agent within the scope of his authority should not be able to make admissions favorable to the opposing side. ‘They [admissions of counsel] may dispense with proof of facts for which witnesses would otherwise be called . . . Indeed, any fact, bearing upon the issues involved, admitted by counsel, may be the ground of the court’s procedure, equally as if established by the clearest proof. .. .’ Oscanyan v. Arms Co., 103 U. S. 261 . As stated in 7 C.J.S. Attorney and Client § 100 b (1937): ‘An attorney employed to prosecute or defend a particular cause is usually held to have the implied power to bind his client by statements and admissions in the pleadings, or in the opening statement; or by any admission or statement of fact deliberately made in good faith in open court during the progress of the case for the purpose of dispensing with testimony or facilitating the trial of the cause, ²¹¹ unless the admission or statement is one which is expressly required by statute to be made or signed by the client personally.’ (Emphasis added.) E. g., Clark & Wilson Lumber Co. v. McAllister, 101 F. 2d 709 (9th Cir.); The People v. Hill Top Mining Co., 300 Ill. 564 , 133 N. E. 303 ; Bayer v. American Mutual Casualty Co., 359 S.W.2d 748 (Mo.).” See Goff v. Richards, 19 Md. App. 250, 252 .

Cf. White v. State, 11 Md. App. 423 . McLhinney established that in Maryland a party is bound by his attorney’s admissions in an opening statement. Vernon v. Aubinoe, 259 Md. 159, 166 . 11 The question in a given case, as it is here, is whether what counsel said in his opening statement amounted to an admission so as to waive the presentation of evidence relating thereto.

Recognizing that an admission made in the counsel’s statement of the case may be treated as binding, it is stated in 9 Wigmore on Evidence (3rd Ed.) § 2594 that “It is of the nature of an admission, plainly, that it be by intention an act of waiver, relating to an opponent’s proof of the fact, and not merely a statement of assertion or concession, made for some independent purpose.” 7 C.J.S. § 100 b (1937), which the Court quoted in McLhinney, continues: “During the pendency of a cause the implied power of an attorney ordinarily extends only to admissions or statements which are distinctly and formally made in open court for the purpose of dispensing with formal proof of a fact at the trial, and are relevant to the issues involved in the particular cause in which the attorney is employed.” Oscanyan v. Arms Co., supra, cited by the Court in ²¹² McLhinney, finding that “[t]he power of the court to act in the disposition of a trial upon facts conceded by counsel is plain as its power to act upon the evidence produced,” said that “[t]he question in either case must be whether the facts upon which it is called to instruct the jury be clearly established. If a doubt exists as to the statement of counsel, the court will withhold its directions, as where the evidence is conflicting, and leave the matter to the determination of the jury.” 103 U. S. at 263 . In Bayer v. American Mutual Casualty Co., supra, cited in McLhinney, the nature of a statement comprising an admission was discussed: “If an attorney in his opening statement makes a clear, unequivocal admission as to a fact, such admission is binding upon his client, but ‘a mere statement or outline of anticipated proof upon any one or more of the issues in the case is not to be regarded as a binding admission so as either to conclude the party whose counsel made the statement or to dispense with the necessity of proof upon the issue on the part of his adversary.’ ” 359 S.W.2d, at 753 . 12 In the other two cases cited in McLhinney the admissions were clear and unequivocal. In Clark & Wilson Lumber Co. v. McAllister, supra, a preliminary question was whether shares of stock were misappropriated or whether the challenged transfers were in any respect wrongful or improper.

The court said, 101 F. 2d, at 713 : “It is true no witness so testified, but defendant’s counsel at the hearing before the referee made an opening statement which cannot be read otherwise than as a concession that the transfers to those persons were in fact misappropriations .. . .” In The People v. Hill Top Mining Co., supra, at the trial, after the People had ²¹³ introduced their evidence and after counsel for the plaintiff in error had introduced the evidence of a witness, his counsel stated to the court and for the information of counsel for the state a considerable portion of the facts. The statement was incorporated in the record and counsel made that same statement a part of his statement of facts to the appellate court. In McLhinney itself the admissions in the opening statement were patently so clear and unequivocal as to remove from the matters in controversy the issues of the alleged driver’s involvement in the accident and the ownership of the vehicle he was driving. 254 Md. at 9-12 . The record extract contains the opening statement in which the admissions were made, and without doubt, as the Court found, they were admissions and not merely a recital of facts which counsel expected to