Suburban Hospital, Inc. v. Kirson

MOYLAN, Judge. Suburban Hospital, Inc., Mary Beth Smith, and Aparangi Paul, the appellants/cross-appellees, challenge a judgment in the Circuit Court for Montgomery County, .Judge Nelson W. Rupp, Jr. presiding, whereby a jury awarded Phyllis R. Kir-son, the appellee/cross-appellant, $130,500 in her medical malpractice suit. The issues raised on appeal are: 1) Did the trial court err in denying Suburban Hospital’s and Smith’s Motions for Judgment Notwithstanding the Verdict based on the exclusivity provision of the Workers’ Compensation Act? 2) Did the trial court err in denying Smith’s Motion for Judgment Notwithstanding the Verdict because there was insufficient evidence as a matter of law to establish Smith’s negligence? 3) Did the trial court err in refusing the appellants’ request to admit testimonial and documentary evidence of prior payments made by Suburban Hospital to or on behalf of Kirson and in consequently failing to reduce the verdict to reflect those previous payments? 4) Did the trial court err in permitting certain cross-examination of Susan Howell, R.N., one of the appellants’ expert witnesses? 5) Did the trial court err in permitting the ostensibly leading questioning of Kirson’s expert witness Dr. Antoni Goral? Kirson, as cross-appellant, raises the following issues: ⁵³⁸ 6) Did the trial court err in permitting the ostensibly irrelevant testimony of Dr. Clifford Hinkes, an expert for the defense? 7) Did the trial court err in granting Anderson’s Motion for Judgment Notwithstanding the Verdict? 8) Should this Court dismiss the appellants’ appeals?

FACTUAL AND PROCEDURAL BACKGROUND On August 6, 1993, Phyllis R. Kirson (“Kirson”), a sixty-year-old nurse at Suburban Hospital, fell in the operating room during the course of her employment. As a result of the fall, Kirson suffered a fractured right femur just above a right total knee prosthesis 1 and was admitted as a patient to Suburban Hospital. On August 7, Kirson underwent surgery at Suburban Hospital to repair the fractured femur. Six days later on August 13, Kirson, while still a patient, fell in her hospital room while being assisted in the use of a bedside toilet.

At the time of the August 13 fall, Mary Beth Smith (“Smith”) was the nurse assigned to Kirson, Mary Anderson (“Anderson”) was the charge nurse on duty, Aparangi Paul (“Paul”) was a patient care technician, and Carol Stephens (“Stephens”) was the patient care manager of the orthopaedic unit. As a result of the fall, an internal fixation device that had been placed in Kirson’s leg during the August 7 surgery came loose. Kirson was therefore required to undergo a revisionary surgical procedure on August 23, 1993, during which time Dr. Antoni Goral, an orthopaedic surgeon, inserted a new plate along with three new screws in Kirson’s leg. The parties disputed the circumstances surrounding Kir-son’s fall in her hospital room on August 13.

According to Kirson, she, while in her room, notified hospital personnel by pushing a call light that she needed assistance. Paul and an unnamed nurse responded. Kirson was assisted out of bed and to a bedside toilet. Paul and the nurse left the room so ⁵³⁹ Kirson could use the toilet.

Kirson once again pushed the call light and Paul alone responded. Paul assisted Kirson to a standing position. Once she was standing, Kirson complained of feeling light-headed and dizzy. Paul accordingly instructed Kirson to sit back down, which she did.

Paul then got a walker, again assisted Kirson to a standing position, removed the toilet from the bedside, and left the room. Kirson was left standing alone with the walker when she fell. Paul, on the other hand, testified that she alone responded to Kirson’s first call for assistance. Paul helped Kirson out of bed without incident and she stayed with Kirson while Kirson used the toilet.

Paul then assisted Kirson to a standing position and to a walker, at which time Kirson complained of feeling light-headed and dizzy. Paul instructed Kirson to sit down, which Kirson did. Paul pushed the call light to request additional assistance. It was while waiting for assistance that Kirson stood back up and fell.

Kirson subsequently filed suit in the Circuit Court for Montgomery County, charging 1) Suburban Hospital, 2) Paul, 3) Smith, 4) Anderson, and 5) Stephens with negligence. In that lawsuit, Kirson alleged that she developed hardware bursitis as a direct result of the revisionary surgical procedure performed following her August 13 fall. As a result of the hardware bursitis, Kirson had to have some of the pins in her right leg removed in March of 1994. As a result of the March 1994 procedure, Kirson developed an infection in her knee prosthesis.

The following September, her knee prosthesis was removed and a new one was inserted in October. 2 At trial, it was contested whether Kirson’s bursitis and subsequent knee prosthesis replacement were a direct result of the August 13 fall or whether the bursitis would have developed regardless of the August 13 fall. The case was tried before a jury beginning on June 8, 1998. All of the defendants moved for judgment at the close of ⁵⁴⁰ Kirson’s case and again at the close of all of the evidence. Paul’s motion was denied.

The court reserved its decision on the other defendants’ motions for judgment and submitted the case to the jury. On June 12, 1998, the following verdicts were returned: 1) The jury found in favor of Kirson and against Paul, Smith, and Anderson; 2) The jury found against Kirson and in favor of Stephens; 3 3) The jury found against Kirson and in favor of Suburban Hospital on the issue of independent negligence; and 4) Judgment was entered against Suburban Hospital for being vicariously liable for the actions of its employees— Paul, Smith, and Anderson. The jury awarded Kirson a total of $130,500 — $27,500 for past medical expenses, $28,000 for past loss of earnings, $75,000 for noneconomic damages, and $0 for loss of future earnings. On June 22, 1998, Suburban Hospital, Smith, and Anderson filed a Motion for Judgment Notwithstanding the Verdict (“JNOV”) as well as a Motion for Remittitur.

On August 13, the court granted the Motion for JNOV as to Anderson only and denied all other requested relief. This appeal and cross-appeal were subsequently noted. THE MOTION TO DISMISS THE APPEALS Before reaching any of the substantive issues before us, we address preliminarily the last contention raised by Kirson in her cross-appeal — 1) that Paul’s appeal should be dismissed because she “did not raise any issue contained in the [appellants’] brief,” and 2) that Suburban Hospital’s and Smith’s appeal should be dismissed for failure to file a proper record extract. Neither contention warrants a dismissal.

As to the dismissal of Paul’s appeal, we note that on the cover page of the joint appellate brief Paul is listed as an ⁵⁴¹ appellant and H. Kenneth Armstrong is listed as her counsel. Merely because Paul has chosen to adopt the arguments made by Suburban Hospital and Smith and not to raise any additional issues unique only to her does not mean, as Kirson contends, that Paul has “failed to file a brief ... in violation of [Maryland Rules] 8-502(a)(l), 8 — 502(b), and 8-502(d).” None of the provisions of the rule cited by Kirson applies. All three of the aforementioned subsections deal with the filing of an appellate brief: subsection (a) is entitled “Duty to file; time;” subsection (b) is entitled “Extension of time;” and subsection (d) is entitled “Default.” What Kirson overlooks is subsection (a)(7) of Rule 8-502, which provides: Multiple appellants or appellees. In an appeal involving more than one appellant or appellee, including actions consolidated for purposes of the appeal, any number of appellants or appellees may join in a single brief.

(Emphasis supplied). Thus, Paul did file a brief in a timely manner in conformity with Rule 8-502(a)(7). Kirson also contends that this Court should dismiss the appeal of Suburban Hospital and Smith because they have failed to include within their record extract (1) transcripts of the hearings on the motions for summary judgement, (2) “material portions” of the testimony of Susan Howell, and (3) any portions of their motions for summary judgment or Kirson’s opposition to their motions for summary judgment. Kirson claims that “[w]hile dismissal of the appeal is not normally appropriate, it may be in this matter.” All of the omissions by the appellants complained of by Kirson, however, were cured by Kirson’s Appendix to her brief.

Any potential gap in the record caused by the failure of the appellants to include certain pertinent information within the record extract was, therefore, rectified by the inclusion of those materials in Kirson’s Appendix. Rule 8-501(m) provides that “[o]rdinarily, an appeal will not be dismissed for failure to file a record extract in compliance with this rule.” Because we have been supplied with all of the information necessary to decide the issues before us on appeal, dismissal is not warrant ⁵⁴² ed. See Thanos v. Mitchell, 220 Md. 389, 393 , 152 A.2d 833 (1959) (Motion to dismiss appeal denied where “the appellee in his appendix furnished the material which he claims should have been printed by the appellant.”); Burdette v. LaScola, 40 Md.App. 720, 736 , 395 A.2d 169 (1978) (“While the appellants’ record extract is deficient, that deficiency has been corrected by the appellees’ printing of an appendix in which the material missing from the appellants’ extract is supplied. We, therefore, deny the motion to dismiss.”) (citation omitted).

THE EXCLUSIVITY PROVISION OF THE WORKERS’ COMPENSATION ACT The appellants have framed the primary issue in this case in three-pronged terms: The circuit court erred in denying Suburban Hospital’s and Mary Beth Smith’s motion for summary judgment, motions for judgment and motion for judgment notwithstanding the verdict, all of which were premised upon the exclusivity provision of the Workers’ Compensation Act. The second and third sub-issues, to wit, whether the trial court erred in denying 1) the motions for judgment and 2) the motions for JNOV, are identical for purposes of our analysis. See Maryland Rule 2-532; Houston v. Safeway Stores, Inc., 109 Md.App. 177, 182-83 , 674 A.2d 87 (1996), rev’d on other grounds, 346 Md. 503 , 697 A.2d 851 (1997) (Motion for JNOV reviewed under the same legal standards as motion for judgment made at close of all of the evidence.) The first sub-issue raised, to wit, whether the trial court erred in denying the motion for summary judgment, is moot. To simplify matters, therefore, we reframe the appellants’ issue as simply whether the trial court erred in denying their Motion for JNOV.

The trial court, when considering a motion for JNOV, is bound by the following standards: It must assume the truth of all credible evidence on that issue and of all inferences fairly deducible therefrom, and consider them in the light most favorable to the party against whom the motion is made.... If there is any ⁵⁴³ competent evidence, however slight, leading to support the plaintiffs right to recover, the case should be submitted to the jury, and a motion for judgment n.o.v. denied. Ramsey v. Physicians Memorial Hosp., Inc., 36 Md.App. 42, 48 , 373 A.2d 26 (1977) (internal quotations omitted) (quoting Miller v. Michalek, 13 Md.App. 16, 17-18 , 281 A.2d 117 (1971)); Houston v. Safeway Stores, Inc., 109 Md.App. 177, 182-83 , 674 A.2d 87 (1996), rev’d on other grounds, 346 Md. 503 , 697 A.2d 851 (1997). The appellants base their argument on Title 9 of the Labor and Employment Article, which deals with Workers’ Compensation.

They rely particularly on § 9-509, which provides: (a) Employers. — Except as otherwise provided in this title, the liability of an employer under this title is exclusive. (b) Covered employees and dependents. — Except as otherwise provided in this title, the compensation provided under this title to a covered employee or the dependents of a covered employee is in place of any right of action against any person. (Emphasis supplied). Citing a plethora of case law dealing with § 9-509(b), Suburban Hospital 4 claims that it was immune from the present suit because Kirson had already received Workers’ Compensation for her injuries and the Workers’ Compensation award is the exclusive remedy permitted. 5 Suburban Hospital’s claim ⁵⁴⁴ is that Kirson, its employee, suffered an “accidental personal injury” on August 6 for which she received workers’ compensation and that, under the exclusivity provision of § 9-509(a), she was thereby barred from bringing any other action against it.

Section 9 — 101(b) defines “accidental personal injury”: “Accidental personal injury” means: (1) an accidental injury that arises out of and in the course of employment; (2) an injury caused by a willful or negligent act of a third person directed against a covered employee in the course of the employment of the covered employee; or (3) a disease or infection that naturally results from an accidental injury that arises out of and in the course of employment [.] (Emphasis supplied). Suburban Hospital’s exclusivity argument is in the proverbial right pew in the wrong church. The argument would have unassailable validity in the context of August 6; it simply does not apply, however, in the context of August 13. Having once received workers’ compensation from her work-related accidental injury of August 6, if Kirson had then attempted to bring a tort action in negligence against Suburban Hospital for that same injury, Suburban Hospital would, of course, be immune from such suit by virtue of the exclusivity provision of § 9-509(a).

The workers’ compensation award was the exclusive remedy available to Kirson FOR THE AUGUST 6 WORK-RELATED FALL. What Suburban Hospital is attempting to do, however, is to conflate the falls of August 6 and August 13 into a single legal event. They are discrete legal events, however, and do not blend or collapse into a single extended phenomenon. The underlying injury for which Kirson eventually brought a tort action in circuit court was the August 13 fall she ⁵⁴⁵ suffered while attempting, as a hospital patient, to use a bedside toilet.

As Kirson lay in a hospital bed on August 13, she indisputably was doing so as a patient there to receive treatment and not “in the course of her employment.” By the precise language of the statute, the term “accidental injury” encompasses only those situations where the employee is injured while in the course of her employment. Miller v. Coles, 232 Md. 522, 527 , 194 A.2d 614 (1963) (“[A]n injury arises ‘in the course of employment’ when it occurs within the period of employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incident thereto.”)(internal quotations omitted); Pariser Bakery v. Koontz, 239 Md. 586, 589 , 212 A.2d 324 (1965)(“An injury arises out of a claimant’s employment when it results from some obligation, condition or incident of his employment.”) The fall of August 13 did not occur in the course of Kirson’s employment and did not implicate in any way Workers’ Compensation law. In attempting to turn a suit for negligence against a hospital into a mere extension of a workers’ compensation claim against an employer, Suburban Hospital cites to § 9 — 101(b) for the proposition that “[a]n injury ‘arising out of and in the course of employment’ includes aggravation of work-related injuries.’ ” For purposes of its entitlement to a JNOV, however, Suburban Hospital cannot remotely claim that it was a matter of undisputed fact that the hospital fall of August 13 and all of its sequellae were nothing but an aggravation of the work-related injury of August 6. Except for the logical fallacy of “Post hoc, ergo propter hoc,” there was no indication of any such connection.

There was, moreover, extensive evidence to the contrary. In the course of the hearing on the motion for summary judgment, the hearing judge referred to the events of August 13 as the point of departure for the present litigation and not as some mere aggravation of something that had occurred at an earlier time: ⁵⁴⁶ But the facts in this case involve, in essence, a slip and fall while she was at the hospital as a patient, not actively receiving treatment at the time she slipped and fell. She was going to the bathroom and she came back, and she slipped and fell. And it is due to the alleged negligence of the nurse in failing to provide adequate support that they have filed a claim.

Indeed, the entire litigation in this case concerned the extent to which later complications — the revisionary surgical procedure of August 23, the removal of the pins in March of 1994, the removal of the knee prosthesis in September of 1994, and the insertion of a new knee prosthesis in October, 1994— could be attributed back to the August 13 fall. There would not even be an argument based on the exclusivity of workers’ compensation relief were it not for the purely fortuitous circumstance that the tort defendant of August 13 by sheer coincidence happened also to be the workers’ compensation employer of August 6. In the circumstances of this case, however, that mere coincidence is without legal significance. What Shakespeare once said about “All the world’s a stage” and about “one man in his time play[ing] many parts,” 6 is equally true about one woman in her time and one institution in its time playing different roles.

Ms. Kirson in this case was playing the part of an employee on August 6 and whether negligence occurred or not was immaterial to her entitlement, in that part, to workers’ compensation. On August 13, by contrast, she was playing the very different part of a hospital patient and her entitlement to be free of the Hospital’s negligence had nothing to do with any earlier employment relationship with the Hospital. She was playing a new part in a new play. On August 6, Suburban Hospital was playing the part of an employer.

On August 13, it played the very different part of a health care provider. ⁵⁴⁷ As we turn our attention to what has come to be known as the Dual Capacity Doctrine, we note that if several of our sister states had not already promulgated the doctrine, we would of necessity have invented it for ourselves, for it is the only analysis that yields a fair and a logical result in this case. When Kirson was injured on the job on August 6, she was entitled to workers’ compensation from her employer, which happened to be the Suburban Hospital. When she was subsequently admitted to a hospital for medical treatment, she took on a totally new role as a patient, just as Suburban Hospital took on a totally new role as a treating hospital. Our analysis of the duty of care owed by the Hospital to the patient will proceed in this case exactly as it would if Kirson had been taken not to Suburban Hospital but to Johns Hopkins or the Mayo Clinic.

For its part, Suburban Hospital’s duty of care and consequent legal obligation to this particular patient will be viewed no differently than would its duty of care and its legal obligation to any other patient with whom it had never had an employment relationship. THE DUAL CAPACITY DOCTRINE In terms of the legal propriety of viewing Suburban Hospital in its capacity as an employer and Suburban Hospital in its capacity as a health care provider as discrete legal entities with no necessary relationship to each other, the analytic heavy lifting has already been done by others. What has come to be called the Dual Capacity Doctrine has, to be sure, never been formally adopted in Maryland and the issue is now before us as one of first impression. Suburban Hospital urges us to decline to adopt the Doctrine.

Its only supporting argument, however, is by way of reminding us that we are not bound to adopt it: Appellee also claims that the circuit court did not err in failing to find that Suburban Hospital and Mary Beth Smith were immune from suit pursuant to the Workers’ Compensation Act in accordance with the “dual capacity” doctrine established by the courts of a handful of other states. ⁵⁴⁸ These opinions, however, are not binding upon this Court, nor are they persuasive. These extra-jurisdictional cases run counter to the plain meaning of the Maryland Workers’ Compensation Act and the holdings of the Maryland Court of Appeals. (Emphasis supplied). We agree that we are not bound.

We readily embrace the Dual Capacity Doctrine, however, because we are persuaded of its merit. Duprey v. Shane, 39 Cal.2d 781 , 249 P.2d 8 (Cal.1952), is the progenitor case. Iva Mae Duprey was employed as a nurse by the Shane Diagnostic Foundation. During the course of her employment as a physical therapist, an accident occurred in which Duprey injured her arm and shoulder.

Accordingly, Duprey consulted and was treated by Dr. Raymond Shane, a partner at the Foundation, and by Dr. John Harrison, a chiropractor employed by the Foundation. After receiving various treatments from Shane and Harrison for approximately five days, Duprey ultimately contacted another physician unrelated to the Foundation. It was then revealed that Duprey had a partial dislocation of the fourth cervical vertebrae. She was hospitalized and put into traction for two weeks.

Duprey subsequently brought a malpractice action against the Foundation, Shane, and Harrison. 39 Cal.2d at 784-88 , 249 P.2d 8 . The Supreme Court of California framed the issue before it as follows: Where an employee of a doctor is injured in the course and scope of employment, and the insured employer treats the industrial injury, and does so negligently, proximately causing a new and further injury and disability, may the employee sue the employer-doctor for malpractice, or has the commission exclusive jurisdiction? Id. at 789 , 249 P.2d 8 . The court immediately answered as follows: It is our conclusion that, when the employing doctor elected to treat the industrial injury, * * * the doctor assumed the same responsibilities that any doctor would have assumed ⁵⁴⁹ had he been called in on the case....

It follows then that the employer-doctor may be sued for malpractice when he elects to treat the industrial injury. Id. The California Supreme Court addressed the Foundation’s argument that, under that state’s workers’ compensation law, it could not be sued in tort for Duprey’s injuries because it was her employer. The court explained: (Defendants) claim, however, that the rule that the employee injured in an industrial accident can sue the attending physician for malpractice only applies when the doctor is a third person, and has no application where the attending physician is also the employer.

There seems to be no authority directly in point on this question, but on principle and logic it would seem that it should make no difference to the liability of the doctor for malpractice whether the attending doctor is the employer or an insurance doctor. This fact should not affect the legal rights of the employee.... There seems to be no logical reason why the employer-doctor, when he undertakes to treat the industrial injury, should not be responsible in a civil action for his negligent acts in treating that injury. Once it is established that an action before the commission for the industrial injury is no bar to an action against the insurance doctor for malpractice, it would seem to follow that the employee does not lose his right to such an action simply because the employer who happens to be a doctor treats the injury.

In such event, the employer-doctor is a, “person other than the employer ” within the meaning of the [relevant Workers’ Compensation provision]. 39 Cal.2d at 792-93 , 249 P.2d 8 (emphasis supplied). Under the facts of Duprey , the Foundation had taken on a role as a “third person” under the workers’ compensation law and Duprey could maintain a malpractice action against it: It is true that the law is opposed to the creation of a dual personality, where to do so is unrealistic and purely legalistic. But where, as here, it is perfectly apparent that the ⁵⁵⁰ person involved, Dr. Shane, bore towards his employee two relationships, that of employer and that of a doctor, there should be no hesitancy in recognizing this fact as a fact--- We conclude, therefore, that an employee injured in an industrial accident may sue the attending physician for malpractice if the original injury is aggravated as a result of the doctor’s negligence, and that such right exists whether the attending doctor is the insurance doctor or the employer. Id. at 793 , 249 P.2d 8 (emphasis supplied).

In Guy v. Arthur H. Thomas Co., 55 Ohio St.2d 183, 378 N.E.2d 488 (1978), Carolyn Guy was employed as a laboratory technician at the Christ Hospital. As part of her job at the hospital, Guy operated a magnematic blood gas apparatus that utilized mercury. Guy ultimately contracted mercury poisoning from the use of the apparatus. She sued the hospital, claiming that the employees of the hospital negligently failed to diagnose her condition properly, thus aggravating her original condition. 378 N.E.2d at 488-89 .

Guy sought no relief from the hospital with regard to the original contraction of the disease, but only for the aggravation of it as a result of the alleged misdiagnosis. The issue before the court was “whether the remedy under the Ohio Workers’ Compensation Law ... is exclusive as to an employer’s liability.” Id. at 489. After quoting extensively from the California Supreme Court’s decision in Duprey , the Ohio court concluded: We find the logic expressed in Duprey ... to be compelling and applicable herein. Appellee’s argument is that the Ohio workers’ compensation requires us to ignore the fact that appellee hospital was not only the employer of appellant, but also the treating hospital and, as such, charged with the obligations that arise in a hospital-patient relationship ....

Appellant’s need for protection from malpractice was neither more nor less than that of another’s employee. The appellee hospital, with respect to its treatment of the appellant, did so as a hospital, not as an employer, and its ⁵⁵¹ relationship with the appellant was that of a hospital-patient with all the concomitant traditional obligations. Id. at 492 (emphasis supplied). In McCormick v. Caterpillar Tractor Co., 85 Ill.2d 352 , 53 Ill.Dec. 207 , 423 N.E.2d 876 (1981), the Illinois Supreme Court quoted with approval Larson on Workmen’s Compensation as it recognized by name the Dual Capacity Doctrine as an exception to the exclusive remedy provisions of Workers’ Compensation laws: In relatively recent years an exception to the exclusive-remedy provision of the Workmen’s Compensation Act has developed under what has come to be called the dual-capacity doctrine.

Professor Larson, in his treatise on Workmen’s Compensation Laws, stated: “Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may be liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as an employer.” (2A A. Larson, Workmen’s Compensation § 72.80, at 14-112 (1976)).... ... The decisive test to determine if the dual-capacity doctrine is invocable is not whether the second function or capacity of the employer is different and separate from the first. Rather, the test is whether the employer’s conduct in the second role or capacity has generated obligations that are unrelated to those flowing from the company’s or individual’s first role as an employer. If the obligations are related, the doctrine is not applicable. 423 N.E.2d at 878 (emphasis supplied).

The California Supreme Court held to a like effect in D’Angona v. County of Los Angeles, 27 Cal.3d 661, 667 , 613 P.2d 238 , 166 Cal.Rptr. 177 (1980): [T]he decisive test of dual capacity is whether the nonem-ployer aspect of the employer’s activity generates a different set of obligations by the employer toward an employee. ⁵⁵² Thus, since a doctor’s obligation toward his patient arises because he undertakes to render medical treatment, if he treats an employee rather than paying another for treatment he should be liable as a doctor rather than as an employer. (citing 2A Larson, Workmen’s Compensation Law (1976), § 72.80, p. 14-117)(emphasis supplied); See also Ray v. District of Columbia, 535 A.2d 868, 871 (D.C.App.1987); Jefferson Med. College Hosp. v. Savage, 7 Pa.Cmwlth. 35 , 298 A.2d 694 (1972) (Invoking dual capacity doctrine and holding that “the crucial factor in the present case is that Miss Savage’s injuries in the hospital were new and independent injuries and were not an aggravation or expansion of her injury sustained in her fall.”). The fact that the cases applying the Dual Capacity Doctrine have, generally speaking, been medical malpractice cases and that the present case is a suit for negligence is a distinction without a difference.

Medical malpractice is but a species of negligence. What the Dual Capacity Doctrine establishes is that Suburban Hospital, albeit an employer on an earlier occasion, can also be a tort defendant in its capacity as a health care provider. See Rosalyn B. Bell, Maryland Civil Jury Instructions and Commentary, § 37.01 p. 844 (1993) (“Medical malpractice cases are governed by the same general principles that govern negligence cases.”), citing to Benson v. Mays, 245 Md. 632, 636 , 227 A.2d 220 (1967), and Suburban Hosp. Ass’n v. Mewhinney, 230 Md. 480, 484 , 187 A.2d 671 (1963).

We hold that Suburban Hospital possesses such a dual capacity in this case. It was involved in an employer-employee relationship with Kirson as far as any workers’ compensation claim for the August 6 fall was concerned. It was involved in a very different hospital-patient relationship with Kirson as far as the August 13 fall was concerned. By application of the Dual Capacity Doctrine, the exclusivity immunity claimed by Suburban Hospital is not available to it. ⁵⁵³ DENIAL OF SMITH’S MOTION FOR JNOV BASED ON INSUFFICIENCY OF THE EVIDENCE Smith asserts an alternative and independent reason as to why the trial court should have granted her Motion for JNOV.

She maintains that there was insufficient