Santoni v. Moodie

Moylan, J., delivered the opinion of the Court. This case comes to us for the second time. The appellant, Antoinette Santoni, is the widow of Mario Santoni and the personal representative of his estate. She brought suit under the wrongful death statute in the Superior Court of Baltimore City against the appellees, physicians with the Baltimore City Health Department, for her husband’s death.

Following extensive testimony and evidence, the trial court submitted the case to the jury on the issues of the appellees’ negligence and Mr. Santoni’s contributory negligence. The jury found the appellees were negligent and that their negligence caused or contributed to Mr. Santoni’s death, but the jury also found that Mr. Santoni himself was contributorily negligent. Recovery thereby was effectively denied the appellant. On appeal to our Court, we held, in Santoni v. Schaerf, et al., 48 Md.App. 498 , 428 A.2d 94 (1981), that the evidence was not sufficient to support a legally permissible inference that Mr. Santoni was contributorily negligent and that the issue should, not have been submitted to the jury.

We reversed the case and remanded it for a retrial on the issue of damages. The appellees did not challenge the jury finding of primary negligence on their part and that is now the law of the case. The appellees did, however, raise two contentions on cross-appeal: (1) that they were entitled to governmental immunity, and (2) that the trial court erred in admitting evidence of twelve other deaths of persons who had received isoniazid (INH) therapy from the Baltimore City Health Department. We decided both of those issues against the appellees.

Because we were reversing the case on the basis of the appellant’s first contention, it was unnecessary for us to deal with the appellant’s remaining four contentions. ¹³¹ The Court of Appeals thereafter granted a writ of certiorari and reversed our judgment, holding that "there was evidence, if believed, from which the jury could infer that Santoni failed to heed instructions and himself was guilty of contributory negligence.” Moodie and Jacobson v. Santoni, 292 Md. 582 , 441 A.2d 323 (1982). The Court remanded the case to us for the consideration of issues raised by the appellant, Mrs. Santoni, which it was unnecessary for us to reach in view of our disposition of the case. The appellant’s remaining contentions are: (1) That the trial court committed reversible error in refusing to admit into evidence a certain conversation between the appellant and her husband; (2) That the trial court committed reversible error in admitting into evidence a "Danger Signs” poster; (3) That the trial court erred in its instructions on contributory negligence; and (4) That the jury’s verdict was inconsistent and irreconcilable. The limited nature of the remand was made very explicit by the Court of Appeals in directing that the "case [be] remanded to that Court for consideration of undecided issues.” The contentions raised by the appellees on cross-appeal, which we decided against the appellees, were not addressed by the Court of Appeals, and our holding in that regard was, therefore, not disturbed.

The opinion for the Court of Appeals concluded, at 292 Md. 591 : "Because of the theory upon which the Court of Special Appeals determined Mrs. Santoni’s appeal, it was not obliged to address certain of her contentions. Therefore, those questions must be considered on the remand.” The facts of this case were fully set out by us in our earlier opinion. We will, however, restate them briefly. Mr. Santoni ¹³² was an Italian immigrant, who came to this country in 1955.

He had little formal education, spoke broken English, and had great difficulty reading the English language. In January, 1972, he obtained employment as a custodian with the City of Baltimore. As a condition of his employment, Mr. Santoni was required to undergo a physical examination, which included a tuberculin skin test and chest X-ray. Although the chest X-ray was clear, Mr. Santoni’s T.B. skin test proved positive, indicating that he had been exposed to tubercle bacilli at some time in his life and was at a greater risk of developing the disease.

As a result, on January 20, 1972, Mr. Santoni was enrolled in a tuberculosis prevention program sponsored by the Baltimore City Health Department. The program involved Mr. Santoni’s taking the drug isoniazid (INH) daily in pill form. This drug has been used widely in the treatment and prevention of tuberculosis. The drug was dispensed to Mr. Santoni on a monthly basis by the Baltimore City Health Department at the Eastern Chest Clinic.

Mr. Santoni was to receive the drug for one year. The tuberculosis prevention program in which Mr. Santoni was a participant was part of a special surveillance program. Sometime in 1970, after the deaths of two participants in a tuberculosis prevention program in Washington, D.C., the United States Public Health Service became concerned that the ingestion of INH might be associated with liver disease, particularly hepatitis. As a result, the following year the Public Health Service enlisted the aid of local health departments in conducting a special surveillance program which would, monitor all recipients of the drug.

Baltimore City, which had one of the highest tuberculosis rates in the country, agreed to participate in the special surveillance to expand its already existing program. The protocol for the program promulgated by the U.S. Public Health Service called for dispensing the drug to each participant on a monthly basis. In this way, the patient would be required to return to the clinic each month, at which time he would be questioned about any adverse reactions. The protocol provided that the patient would be ¹³³ "ask[ed] specifically about jaundice, dark urine, sustained loss of appetite, marked fatigue and prolonged nausea or vomiting.” Where there was any adverse reaction, the drug would be discontinued immediately.

Report cards on each patient would be sent to the Public Health Service each month. The appellee Dr. Allan H. Moodie was the administrative head of the Tuberculosis Division of the Baltimore City Health Department. Among other things, he arranged the funding and staff for the isoniazid program. Dr. Meyer W. Jacobson was the Clinical Director of the Baltimore City tuberculosis program.

Mr. Santoni faithfully went to the clinic each month from January through June, 1972, to receive his medication. He mistakenly believed that in order to work for the City of Baltimore he had to take the drug. Soon after he began taking the pills, he started to experience fatigue and decreased appetite. Then he noted fullness, abdominal discomfort, and increased flatulence.

Then he could not tolerate fatty foods, his stools became lighter, his urine became darker, and he began to feel very tired. In mid-June, his wife became concerned about his condition and consulted her doctor, who prescribed coantigel and librium for Mr. Santoni. When Mr. Santoni’s condition worsened, Mrs. Santoni called Dr. Joseph Notarangelo at Mercy Hospital. Mr. Santoni was admitted to Mercy on June 22.

At the time of his admission, he complained of excessive gas and indigestion. Although he gave a fairly detailed history of his illness, he did not know that he was jaundiced. On the basis of Mr. Santoni’s complaints, a preliminary diagnosis of a peptic ulcer was made. Ultimately, however, he was diagnosed as suffering from hepatitis.

Despite excellent hospital treatment and no complications. Mr. Santoni died on July 3, 1972, of hepatitis, caused by a toxic reaction to isoniazid. Under the circumstances and with the unchallenged finding by the jury that Mr. Santoni’s death was attributable, at least in part, to the primary negligence of the appellees, the issue of Mr. Santoni’s contributory negligence becomes all important. Reversing our earlier holding that there was no legally sufficient evidence of contributory ¹³⁴ negligence to permit the jury to consider the issue, the Court of Appeals held squarely that there was a legitimate jury question in this regard.

We turn now to the facts that may have pertinence on that issue of contributory negligence. It was the intent of the special surveillance program that each participant be advised at the time of his initial clinic interview that isoniazid may have a side effect. Each participant was to be advised by a nurse as to what the signs and symptoms of that side effect are. At the time of the monthly visits, the patient was to be examined verbally as to whether he was suffering from any of those symptoms.

At first, only public health nurses were permitted to interview the patients. As the program expanded, however, health aides and clerical help were authorized to conduct the follow-up interviews. There was no direct evidence at trial that Mario Santoni was ever advised or knew of the risks of taking INH or that he was properly questioned about adverse signs and symptoms at the time of his monthly clinic visits. Whatever evidence there was on this issue was totally circumstantial.

The appellant, Mrs. Santoni, introduced into evidence the computer cards which were sent to the Public Health Service after each of Mr. Santoni’s visits. The face of the cards had a line for noting the number of pills taken during the preceding month. It also contained a list of reasons for not issuing isoniazid with space for check marks next to those reasons and a space for further specification. The reasons listed included "Adverse reaction,” "Suspected hepatitis,” and "Other illness.” The backs of the cards had space for listing any medication taken by Mr. Santoni during the preceding month and for listing his alcohol and tobacco consumption.

Mr. Santoni’s computer card for February listed the number of isoniazid pills taken during the previous month, but no other notation was made on the face of the card. On the back of the card, where space was provided for listing medication, there was the notation "no information.” No alcohol or tobacco consumption was noted. The computer cards for both March and April listed the number of pills taken during ¹³⁵ the preceding month, but again there were no other notations on the face of the cards. On the back of the cards, the word "none” was written across each card where space was provided for listing medication, and there was a notation of alcohol and tobacco consumption.

The May 16 and June 12 computer cards had similar notations on the back as to medication and alcohol and tobacco consumption. The face of each card, however, in addition to listing the number of pills taken during the last month, also contained another notation. The May computer card contained the notation "no problem” on the line provided for recording any adverse reaction, as a reason why isoniazid was not issued. The June computer card contained the notation "no” on the same line.

The Court of Appeals held that these cards "provide a clear basis for an inference” that Mr. Santoni was properly questioned about the signs and symptoms of hepatitis but that he failed to report them. The Court, in holding that the question of contributory negligence was for the jury, stated, at 292 Md. 591 : "Given the testimony adduced on behalf of the defense that the Baltimore City Health Department was strictly following the protocol established by the U.S. Public Health Service; that this protocol included questioning each patient relative to his symptoms each time he visited the clinic and emphasizing to each patient the importance of reporting those symptoms which might be indicative of hepatitis; that the nursing supervisor testified regarding the procedures followed, which were in accord with those of the Public Health Service; that evidence of spot checks reflected compliance with established procedures, and that notations on Santoni’s card indicate that he was questioned each time he went to the clinic but that he reported no symptoms of hepatitis, we think there was evidence, if believed, from which the jury could infer that Santoni failed to heed instructions and hence was guilty of contributory negligence.” ¹³⁶ The Court of Appeals made it clear that although, in their judgment, the appellees had generated a jury issue on the subject of contributory negligence, they had just barely done so. There was no direct evidence of contributory negligence but only a permitted inference of such negligence. In holding that this permitted inference was enough, the Court adverted repeatedly to the extremely permissive attitude of Maryland in this regard.

"Maryland has gone about as far as any state in holding that meager evidence of negligence is sufficient to carry a case to the jury.” 292 Md. at 587 . " 'The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence....’ ” (Emphasis in original.) Id. at 588 , quoting from Fowler v. Smith, 240 Md. 240 , 213 A.2d 549 (1965)." '[T]his Court has always maintained that if there be any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then a trial court has invaded the province of the jury by declaring a directed verdict.’ ” (Emphasis in original.) Id. at 590, quoting Plitt v. Greenberg, 242 Md. 359, 367-368 , 219 A.2d 237 (1966). We emphasize the minimal nature of the evidence of contributory negligence to highlight the critical significance of the countervailing evidence which the appellant sought to introduce. Since a genuine jury question existed as to contributory negligence, any evidence the appellant sought to offer to negate such negligence and to dissuade the jury from drawing the inference of negligence was pivotally material.

The first of the appellant’s remaining contentions, which we did not find it necessary to address when the case was first before us, was: That the trial court committed reversible error in refusing to admit into evidence a certain conversation between the appellant and her husband. The testimony as to the conversation, if believed, was relevant. It tended strongly to prove that Mr. Santoni had no foreseeability of harm. Relevance being beyond dispute, we turn to the issues of materiality and competence (admissibil ¹³⁷ ity).

Materiality involves the question of whether, as a matter of law, foreseeability of harm is a pertinent issue to be decided. In holding unequivocally that it is, we turn to a consideration of the contributory negligence law in a factual posture such as this. An important element of contributory negligence is the foreseeability of harm. To be held contributorily negligent, a person must actually have been aware of or should have appreciated the risks involved and then failed to exercise reasonable and ordinary care for his own safety.

The courts have on many occasions discussed this element of foreseeability of risks and failure to exercise ordinary care. In Menish v. Polinger Company, 277 Md. 553 , 356 A.2d 233 (1976), the Court of Appeals stated, at 277 Md. 560 -561: "Before the doctrine of contributory negligence can be successfully invoked, it must be demonstrated that the injured party acted, or failed to act, with knowledge and appreciation, either actual or imputed, of the danger of injury which his conduct involves... . Stated another way, when one who knows and appreciates, or in the exercise of ordinary care should know and appreciate, the existence of danger from which injury might reasonably be anticipated, he must exercise ordinary care to avoid such injury; when by his voluntary acts or omissions he exposes himself to danger of which he has actual or imputed knowledge, he may be guilty of contributory negligence.” (Citations omitted.) In Sanders v. Williams, 209 Md. 149 , 120 A.2d 397 (1956), the Court stated, at 209 Md. 152 : "As is true of primary negligence, one measure of contributory negligence is the need, in a given situation, to anticipate danger. Presence or absence of reasonable foresight is an essential part of the concept.

One is charged with notice of what a reasonably and ordinarily prudent person would have foreseen and so must foresee what common experi ¹³⁸ ence tells may, in all likelihood, occur, and to anticipate and guard against what usually happens. On the other hand, one is not bound to anticipate every possible injury that may occur or every possible eventuality.... Absent actual or constructive knowledge to the contrary, one may act on the assumption that he will not be exposed to danger that will come only by the breach of duty which another owes him. He is not bound to anticipate negligent acts or omissions on the part of others unless, under the circumstances, an ordinarily prudent person would know, or should know, that it was not safe to make the assumption of due care on the part of the other person.” (Citations omitted.) With respect to this element of foreseeability, in discussing contributory negligence in medical malpractice cases, courts have noted the disparity between the knowledge and skill of a doctor and that of a patient.

The patient is not in a position to diagnose his own ailment. Without being told, he does not know the risks of medication. He is not in a position to judge whether the prescribed course of treatment is in his best interest. As a consequence, it is not contributory negligence for a patient to follow a doctor’s instructions or rely on his advice, Largess v. Tatum, 130 Vt. 271 , 291 A.2d 398 (1972), Los Alamos Medical Center, Inc. v. Coe, 58 N.M. 686 , 275 P.2d 175 (1954); to fail to consult another doctor when the patient has no reason to believe that the doctor’s negligence has caused his injury, Johnson v. United States, 271 F.Supp. 205 (W.D. Ark. 1967), Rahn v. United States, 222 F.Supp. 775 (S.D.Ga. 1963), Fairchild v. Brian, 354 So.2d 675 (La.App. 1977); or to fail to diagnose his own illness, O’Neil v. State, 66 Misc.2d 936 , 323 N.Y.S.2d 56 (1971).

See also Martineau v. Nelson, 311 Minn. 92 , 247 N.W.2d 409, 417 (1976); Annot., Contributory Negligence or Assumption of Risk as Defense in Action against Physician or Surgeon for Malpractice, 50 A.L.R.2d 438 . The patient has a right to rely on the doctor’s knowledge and skill. The court in Halverson v. Zimmerman, 60 N.D. ¹³⁹ 113, 232 N.W. 754, 759 (1930), stated well the nature of this reliance: "It is not a part of the duties of a patient to distrust his physician, or to set his judgment against that of the expert whom he has employed to treat him or to appeal to other physicians to ascertain if the physician is performing his duty properly. The very relation assumes trust and confidence on the part of the patient in the capacity and skill of the physician; and it would indeed require an unusual state of facts to render a person who is possessed of no medical skill guilty of contributory negligence because he accepts the word of his physician and trusts in the efficacy of the treatment prescribed by him.

A patient has the right to rely on the professional skill of his physician, without calling others in to determine whether he really possesses such skill or not. The patient is not bound to call in other physicians, unless he becomes fully aware that the physician has not been, and is not, giving proper treatment.” 57 Am.Jur.2d, Negligence § 324, discusses the comparative knowledge of the parties as bearing on the question of liability. "Since knowledge of danger, either actual or imputed, is an element of