State, Use of Solomon v. Fishel

Bruñe, C. J., delivered the opinion of the Court. This is an appeal from a judgment entered upon the verdict of a jury in favor of the defendant in a medical malpractice death case. The widow and infant children of the decedent sued the defendant surgeon for damages under the Death by Wrongful Act statute, and the widow, as executrix, also brought suit against the surgeon for medical expenses and for pain and suffering. The two causes of action were joined in one declaration.

The plaintiffs charged the defendant with negligence in delaying hospitalization and in delaying an operation. The charge of delaying the operation as made in the original declaration related to the time of the admission of the decedent to a hospital. As amended after the testimony had been concluded but before the case went to the jury, this charge pertained to a period some hours later. The contentions raised by the plaintiffs-appellants relate (a) to the admission of opinion testimony by expert witnesses for ¹⁹¹ the appellee and (b) to instructions to the jury.

They challenge the expert testimony on the ground that hypothetical questions, identifying the facts upon which the experts’ opinions were based, were not used. This presents the most important problem in the case. The defendant-appellee controverts both of the appellants’ contentions, and contends at the outset that his motion for a directed verdict should have been granted. We shall consider the appellants’ contentions first.

Most of the facts in the case are clear and undisputed. The decedent, Mr. Solomon, was a man thirty-six years old at the time of his death on October 9, 1956. The first known manifestation of his last illness, which ultimately proved to be due to a bleeding duodenal ulcer, came early in the morning of Friday, October 5, 1956, when he vomited a dark, coffee-colored liquid and passed some blood rectally on several occasions and also had some stomach spasm. He consulted Dr. James Frenkil, who was his employer’s compensation physician, about the middle of that day.

Dr. Frenkil suspected gastro-intestinal trouble and made an appointment for Mr. Solomon to have a barium x-ray examination made the next morning. Dr. Frenkil noted that Mr. Solomon was nervous about his wife, who was then pregnant. He told Mr. Solomon to go home and put an ice bag on his stomach; and, as Dr. Frenkil was going out of town, he instructed him in case of further trouble to call the defendant, Dr. Fishel, who was associated with Dr. Frenkil. Dr. Fishel had only recently entered private practice, but he had had excellent surgical training and experience, including a good deal of abdominal surgery and, specifically, some gastro-intestinal surgery.

Mr. Solomon did have more bloody bowel movements and telephoned Dr. Fishel at about 7 P.M. Dr. Fishel visited Mr. Solomon at the latter’s home at about 8:30 or 9:00 P.M. and took a history from him. In it Mr. Solomon stated that he had not had any bowel trouble prior to his current illness, and Dr. Fishel prescribed paregoric for the night. In the history then taken Dr. Fishel noted that there were some indications of prior indigestion, but that the patient denied having consulted any doctor for the treatment of ulcers, indigestion or anything relating to the intestinal tract. He also denied that he was ¹⁹² nervous or worried about anything except the condition of his wife who was then pregnant.

After he entered the hospital on Sunday afternoon he gave a history disclosing that he had consulted a doctor about some stomach trouble about a year earlier and had been given probanthene, which is a medication to quiet irritability of the stomach, but that he had taken none for about six months. It later developed also that he had worries about his job. Mr. Solomon also told Dr. Fishel at this first interview on Friday evening that he had had some high and some low blood pressure, which had fluctuated with his weight. Dr. Fishel took Mr. Solomon’s blood pressure and pulse, both of which were good.

During the night Mr. Solomon passed more blood rectally and nearly fainted on Saturday morning. He telephoned Dr. Fishel, who again came to see him, thought him in no condition to go in town for his scheduled barium examination, and arranged for a laboratory technician to come out, obtain a blood sample and make tests of it and report to Dr. Fishel. This was done. The report showed a hemoglobin count of 8.8 as against a stated normal of 14 and a hematocrit count of 25 as against a stated normal of about 45.

Dr. Fishel again went to see Mr. Solomon, recommended hospitalization and, by telephone from Mr. Solomon’s home, found he could obtain an emergency bed in a ward at Sinai Hospital, which was the hospital of the patient’s choice. Mr. Solomon declined or refused to go to the hospital. He did not wish to be hospitalized, he was concerned about his wife’s condition (she had had some bleeding in connection with her pregnancy), and he did not wish to go into the hospital as a ward patient. There is a dispute as to what was then said by Dr. Fishel with regard to the need for, or urgency of hospital treatment.

This will be more fully considered later. Mr. Solomon telephoned Dr. Fishel the next morning, Sunday, October 7th, at about 9:30 or 10:00, and said that he was feeling somewhat weaker and was then willing to go to the hospital. Dr. Fishel again went to see him. He tried to get: a room at Sinai Hospital, but could not, and then tried another hospital without success.

He suggested a third where he ¹⁹³ had privileges, but Mr. Solomon did not wish to go there. Through another doctor, and with Dr. Fishel’s approval, the Solomons then tried to get a bed at Sinai, also without success. Dr. Fishel then left the Solomons’ home, went to Sinai Hospital and renewed his request for a bed. None was then available, but a room did become available a little later.

The Solomons were notified and Mr. Solomon’s brother brought the decedent in. As Dr. Fishel returned from a nearby hospital, he found Mr. Solomon in a wheel chair in the foyer. He was admitted to the hospital at about four o’clock. At the time of his admission Mr. Solomon still presented something of a diagnostic problem.

Since Dr. Fishel was a surgeon, Mr. Solomon was first placed on the surgical service of the hospital. With Mr. Solomon’s consent, Dr. Fishel then sought the assistance of a medical doctor experienced in gastro-enterology. The first man whom Dr. Fishel called was about to leave town on an extended trip and suggested several others, among them Dr. Leon E. Kassel, whom Mr. Solomon selected. Drs.

Kassel and Fishel had a consultation at once and Dr. Kassel also saw Mr. Solomon privately. The patient told him that Dr. Fishel had recommended hospitalization the day before but that he did not go because of his desire to avoid hospitalization. When Dr. Kassel entered the case Mr. Solomon was transferred to the medical service of the hospital. Though the primary responsibility under hospital practice then appears to have become Dr. Kassel’s, it is customary for medical and surgical men to work together as a team in cases of this sort, and Dr. Fishel does not take the position that he was relieved of responsibility.

In the treatment of bleeding gastro-intestinal ulcers, there are several well recognized methods of treatment. One is merely to use blood transfusions to replace lost blood, to keep the patient out of shock and to give nature a chance to stop the bleeding by forming a clot that will hold. Another is to operate at once. A third is more or less a combination of the first two.

This is to test transfusions as a means of stopping the bleeding, to watch the patient closely, and if the transfu ¹⁹⁴ sions are not accomplishing the desired result of stopping or at least slowing down the bleeding then to resort to surgery. The use of transfusion tests is generally considered particularly desirable in the case of patients under forty years of age. There seems to be no fixed standard as to the duration of the test period. The decision to operate, if made, is made by the medical and surgical men working together.

Prior to such a decision it is customary that the patient be on the medical service. The third method of treatment and the usual practice thereunder were followed in Mr. Solomon’s case, and the plaintiffs do not attack the choice of method. So far as treatment is concerned their attacks are directed primarily against the timing. Mr. Solomon had a transient drop in blood pressure at about 6:30 that Sunday afternoon but it came up again before his first transfusion was completed.

By ten o’clock his blood pressure appeared stablized, his hematocrit had begun to rise and his condition seemed satisfactory with indications that the bleeding had stopped or had slowed down preparatory to stopping. Dr. Fishel left the hospital at about ten o’clock, being subject to call if needed. At about 10:50 that night Mr. Solomon vomited more blood, but when Dr. Kassel left at about eleven o’clock he thought the patient was in satisfactory condition and that the policy of continued watchful waiting was indicated. Mr. Solomon continued to lose blood during the night and an intern cálled Dr. Kassel at about 5:30 the next (Monday) morning.

Dr. Kassel went to the hospital and arrived between 6:30 and 7:00 o’clock, and saw Mr. Solomon and concluded that he should have surgery promptly. Mr. Solomon was unwilling to have it, even after an hour and a half’s talk with Dr. Kassel. Dr. Kassel called to notify Dr. Fishel of the situation, but found that Dr. Fishel was already on his way to the hospital. He arrived at about 8:00 or 8:30 A.M. Dr. Kassel had just left on an emergency case.

Dr. Fishel checked Mr. Solomon’s condition and saw him two or three times to urge surgery, but without success. Dr. Kassel returned and at about 10:15 A.M. called in the chief of medicine of the ¹⁹⁵ hospital to try to persuade Mr. Solomon to have an operation. At about 11 A.M. he was successful in doing so. After Mr. Solomon’s consent was obtained there was a delay of some additional two hours, during which the family could not agree whether to have Dr. Eishel perform the operation or to have another doctor who was older and more experienced perform it.

The final decision was in favor of asking the other doctor to operate and he did so. Anesthesia began at about 2:00 P.M. on Monday and the actual operation lasted nearly four hours, ending at about 6:15 P.M. Transfusions were continued during its progress. The patient was found to have a duodenal ulcer which was bleeding rather profusely and because of the edematous (full of fluid) and friable (breaking or tearing easily) condition of the stump of the duodenum, the surgeon was unable to close the area to his complete satisfaction, even with the use of a tube. However, the patient left the operating room and the recovery room in good condition.

Transfusions were continued, but Mr. Solomon died about twenty-four hours after the operation. There is some question, which we think it unnecessary for us to resolve, as to the exact cause of death. One theory which derives some of its support from the defendant’s answer to an interrogatory is, in brief, that death was due to hemorrhages, to which the plaintiffs allege undue delay in hospitalization contributed. The other, also in brief, is that it was due to overtransfusion to offset the loss of blood (which, if it occurred, happened after the defendant was no longer on the case).

Whatever the exact cause of death, if the defendant is to be held liable for the death, the foundation of his liability must be some want of skill, care or diligence in his treatment of the patient; and on the stand he accepted the “full responsibility” for whatever he did in the case. 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 Baltimore) in which he was practising by doctors engaged in the same field. See Lane v. Calvert, 215 Md. 457, 462 , 138 A. 2d 902 , ¹⁹⁶ and cases therein cited. (Causation must, of course, also be shown in order to establish liability, but we are not at this point concerned with it.) In medical malpractice cases ordinarily the main issue of the defendant’s use of suitable professional skill is a topic calling for expert testimony only.

Pink v. Steele, 166 Md. 354, 361 , 171 A. 49 , citing Wigmore, Evidence (2nd Ed.), § 2090 [3rd Ed., Vol. 7, § 2090], See also Galusca v. Dodd, 189 Md. 666, 668-69 , 57 A. 2d 313 . Certainly this case is no exception to that general rule. The plaintiffs’ objections to the defendant’s questions to his expert witnesses are essentially that they were based upon conflicting evidence and that hypothetical questions eliminating such conflicts should have been employed. Some confusion has been injected into this case by the form of at least some of the plaintiffs’ objections, which strongly suggest that the plaintiffs claimed that only a full hypothetical question could be used, and by the defendant’s counter argument at the trial that a question based upon the evidence already submitted was not hypothetical.

Neither contention would be well founded. A question designed to elicit the opinion of an expert witness based not upon his personal observation, but upon the testimony of others and such data as hospital records, need not be in the usual (and generally cumbersome) form of a hypothetical question. Quimby v. Greenhawk, 166 Md. 335, 338 , 171 A. 59 , and cases therein cited; Industrial Service Co. v. State, 176 Md. 625, 634 , 6 A. 2d 372 ; Thompson v. Standard Wholesale Phosphate, Etc., Works, 178 Md. 305 , 13 A. 2d 328 ; Bethlehem-Sparrows Point Shipyard, Inc. v. Scherpenisse, 187 Md. 375 , 50 A. 2d 256 ; Twombley v. Puller Brush Co., 221 Md. 476 , 158 A. 2d 110 . On the other hand, where, as in this case, an expert is asked to express his opinion on the basis of the testimony of others and upon documentary evidence (mainly hospital records), the foundation for his opinion, not being facts within his personal knowledge or observation, is a set of facts which, as to him, is necessarily hypothetical.

In the words of Judge Parke in Quimby v. Greenhawk, supra, 166 Md. at 338-339: “the ¹⁹⁷ hearing or reading of the testimony is accepted as an imperfect substitute for the formal hypothetical question in furnishing the data for inference by the expert witness.” Whether this form of questioning is more accurately described as an imperfect substitute for the formal hypothetical question, or as a variant thereof, it is still essentially a form of presenting a hypothesis upon which an opinion is to be expressed. See McCormick, Evidence, § 14, p. 30. See also Williams v. Dawidowicz, 209 Md. 77, 86-87 , 120 A. 2d 399 . Not without some doubt, we shall treat the plaintiffs’ objections to the questions put to