Sullivan v. Miller

Thompson, J., delivered the opinion of the Court. Anna E. Miller and Donald H. Miller, her husband, filed suit in the Baltimore City Court for medical malpractice against Bon Secours Hospital, Dr. Sullins G. Sullivan, Dr. John D. Pound, Dr. W. Perry Arnold, Dr. Daniel G. Wehner and Dr. John E. Miller. Dr. Sullivan, the only appellant here, failed to file ah answer to the suit resulting in the entry of a default judgment against him. The jury found Drs.

Pound and Arnold to have been negligent and assessed damages totalling $400,300 against Drs. Sullivan, Pound and Arnold, jointly. Briefs have been submitted to this Court by Drs. Arnold and Pound.

Mr. & Mrs. Miller have not submitted briefs. For convenience we will refer to Drs. Arnold and Pound as “the appellees”. Dr. Sullivan alleges that the trial court erred in failing to grant his motion to strike out the default judgment and in the presentation of certain instructions and issues to the jury.

In order to put the case in proper focus we will quote a substantial portion of Count 2 of the Declaration italicizing ¹⁹¹ those portions which pertain particularly to Dr. Sullivan, the appellant: “ANNA E. MILLER, by her attorney, Marvin Ellin, sues BON SECOURS HOSPITAL, a body corporate; JOHN D. POUND, M.D.; JOHN E. MILLER, M.D.; W. PERRY ARNOLD, M.D.; DANIEL G. WEHNER, M.D.; and SULLINS G. SULLIVAN, M.D., Defendants: “The Plaintiff incorporates in this count those facts set forth in Count I hereinabove by reference thereto intending each and every allegation thereof to be deemed part hereof as if each and every sentence and paragraph were repeated, adding that the history of the Plaintiffs prior stomach difficulty as well as the hospital records of her confinement at the Defendant Hospital from the period August 25, 1971 through September S, 1971 were available and read by, or in the exercise of due care should have been read by, the Defendants in the instant count. “The Plaintiff alleges that she was reconfined at the Defendant Hospital on November 20, 1971, under the care of the Defendant Pound and the Defendant Wehner who was brought in by the Defendant Pound as a consultant. The Plaintiffs symptoms and complaints were the same as those symptoms and complaints made by the Plaintiff in her prior confinement from the period August 25, 1971 to September 3,1971. The Plaintiff complained about the worsening of stomach pain and digestive difficulty from which she was suffering as well as a continuing nausea and other complaints referable to an upper gastrointestinal disorder. Notwithstanding such complaints and prior history, the Defendants, and each of them, negligently failed to perform an upper GI study — this study would have revealed the fact that the Plaintiff was suffering from a simple gastric ulcer. ¹⁹² .“Instead of performing the GI series which would have been a safe conservative and non-injurious method of determining the Plaintiffs condition, the Defendants negligently subjected the Plaintiff to a series of unnecessary risks involving invasive and potentially injurious tests which were not indicated and which, through negligent performance, resulted in tragic, permanent and disabling injuries to the Plaintiff and her husband. “It is alleged that, ignoring all safe, non-invasive and conservative methods which existed to arrive at a correct diagnosis of the Plaintiff’s condition, the Defendants caused an aortogram to be performed on the Plaintiff to confirm the existence of what was negligently believed to be an abdominal aortic aneurysm (weakness in the wall of an artery causing it to bulge) as the cause of the Plaintiffs stomach difficulty.

The Plaintiff was subjected to a hazardous procedure which the Defendant W. Perry Arnold, M.D. had been specifically cautioned to avoid. In addition, he failed to exercise the usual standards of medical care in the insertion of a catheter into the Plaintiff’s right femoral artery. As a result, dye injected through the catheter was caused to dissect into the layers of the aortic wall causing a tear of the aortic wall by negligent and injurious insertion. “It is further alleged that the insult or injury to the right femoral artery caused by the negligence of the Defendant Arnold initiated an abnormal clotting of the blood in the artery causing a life-threatening and dangerous condition to result in the Plaintiffs right leg — to wit: a blocking of blood supply to the right leg by the clotting which was produced by the trauma by the catheter. “The Plaintiff avers that the presence or absence of an abdominal aneurysm could have been established by a safe method of x-ray study which ¹⁹³ would have revealed such a condition without subjecting the Plaintiff to the jeopardy of inserting a catheter into a main artery in a retrograde fashion. Such procedure was unnecessary, contraindicated, and not in keeping with the usual standards of medical care in the community. “Following the development of clotting in the Plaintiffs right femoral artery, it was necessary for her to undergo surgical removal of such clots — this surgery performed on her by the Defendant Miller. “Notwithstanding the injury inflicted upon the Plaintiff by the Defendant Arnold and the Plaintiffs predisposition to clotting caused by injury to the femoral artery, the Defendant Arnold with the Defendant Pound participating and concurring in such action, negligently followed the above recited procedure with an attempt to thread a catheter through the artery located under the left armpit (axilla) sliding the catheter through the artery in an effort to inject contrast material into the aortic region.

During this attempt (November 26, 1971), the Defendant Arnold negligently produced a perforation of the aorta by negligent and reckless manipulation of the catheter. Because of the injury to the aorta, the Plaintiff bled internally, causing bleeding into the mediastinal area (between the lungs). “Following this, the Plaintiff began to experience excruciating pain and mental anguish and had difficulty in breathing, necessitating endotracheal intubation or the placing of a hose into the Plaintiffs trachea to insure sufficient oxygen to sustain her. The Plaintiffs blood pressure dropped, she developed shock, and required additional emergency and dangerous treatment with intravenous solucortef and aminophyllin. Additionally, because of the clotting developing in ¹⁹⁴ her right leg, the Plaintiff began to develop numbness in the right foot — the denial of blood supply to the right foot being caused by continuing clotting in the right femoral artery resulting from the negligence aforesaid. “Later in the day of November 26, 1971, because of the continuation of reoccurring thrombosis (clotting) of the right femoral artery, it was necessary for the Plaintiff to undergo a thrombectomy, a surgical procedure for the removal of such clots, this necessitating the incising into the right groin area.

The Plaintiff avers that this surgical procedure was negligently performed and improperly planned by reason of the failure to first perform an arteriographic study to discover the location and degree of clotting within the femoral artery so that adequate and proper surgery could be performed — this procedure performed by the Defendant Miller with the assistance of duly authorized Defendant Hospital personnel and the concurrence of the Plaintiffs physician, the Defendant Pound, and the Defendant Wehner. It is alleged that the only ailment which required treatment was the nonsurgical care of a gastric ulcer which was negligently ignored, and that all other major medical problems were the result of negligent medical care. “It is alleged that following the aforesaid thrombectomy on November 26, 1971, that, because of massive injury to' the Plaintiff’s body, the clotting process continued creating a recurrent blockage of the superficial femoral artery — this denying sufficient blood supply to the right lower extremity. It is alleged that again no arteriographic study was done on the Plaintiff’s right leg to determine the location and degree of the clotting process to guide and advise the surgeon (the Defendant Miller and duly authorized personnel of ¹⁹⁵ the Defendant Hospital with the concurrence and approval of the Plaintiffs treating physician, the Defendant Pound, as well as the Defendant Wehner), such study a compelling, necessary and usually employed method in cardiovascular surgery employed by the medical and hospital community in all major cities of the United States, including Baltimore, Maryland. With incomplete and negligently performed presurgical study given, the Plaintiff was subjected to a second thrombectomy on November 27, 1971. “It is alleged that notwithstanding pre-existing history, complaints, symptoms, and evidence which existed in the Plaintiffs hospital record and as recited by the Plaintiff, the Defendant Miller and the Defendant Sullivan, on November 27, 1971, with the concurrence of the remaining Defendants and the assistance of duly authorized medical and surgical personnel and the concurrence and recommendation of the attending physicians, the Defendant Pound and the Defendant Wehner, negligently, unnecessarily and against indication for such procedure, performed a laparotomy (abdominal exploratory surgery) and caused a subtotal gastrectomy to be performed upon the Plaintiff resulting in the removal of 75% of her stomach. “The Plaintiff avers that following the aforesaid procedure performed upon her, all necessitated by the negligence of the Defendants, and each of them, that the Plaintiff continued to develop blood clots in her femoral artery preventing the adequate flow of blood to the right leg which caused gangrene of the right foot to develop. “The Defendants again negligently failed to perform arteriogmphic studies in an effort to establish the exte?U of obstructing material in the right femoral artery, and instead, on December k, ¹⁹⁶ 1971, a duly authorized surgeon of the Defendant Hospital, acting under the concurring opinion and recommendation of the Defendant Pound, the Defendant Wehner, the Defendant Miller and the Defendant Arnold, amputated the Plaintiffs right leg because of reoccurring thrombosis or clotting with resultant gangrene and death of the right leg. ” The remainder of Count 2 alleged damages suffered by-reason of the negligence of the Defendants.

Count 3 alleged hospital expenses were incurred by Mr. Miller as the result of the defendants’ negligence. Count 4 alleged damage to the marital relationship of Mr. & Mrs. Miller. Count 1 pertained to the Bon Secours Hospital. I Instructions Pertaining to Damages Resulting from the Loss of the Leg Dr. Sullivan alleges the trial court erred in failing to instruct the jury that the evidence showed that his negligence did not contribute in any way to the loss of Mrs. Miller’s' leg.

He argues that although the judgment estáblished his duty to the plaintiffs and his failure to discharge the duty, as well as some loss therefrom, it necessarily follows that the evidence must show what damages in fact flowed from the negligence. The appellees argue, however, that the default judgment established every element necessary to determine the defendant’s liability except the amount of damages; that a defendant in default cannot introduce evidence to contradict liability; that it would have been improper for the trial judge to have instructed the jury that Dr. Sullivan was not responsible for the loss of the leg because a finding of liability included a finding of damage proximately caused by Dr. Sullivan; and that proximate cause is not an issue in the inquisition of damages after a default judgment. In our view, reason and authority do not completely support either argument. It is apparent that after a default judgment a plaintiff cannot prove damages which resulted from negligence other than that alleged in the declaration, that is, proximately caused ¹⁹⁷ by the alleged negligence.

It is equally apparent that we must look to the declaration and not to the evidence to determine Dr. Sullivan’s negligence. It takes but a glance at the declaration to see that, rightly or wrongly, it alleged that Dr. Sullivan participated with the other defendants in the acts of negligence which led to the loss of the leg. The trial judge properly refused the instruction concerning Dr. Sullivan’s responsibility for the loss of the leg. Dr. Sullivan relies on Smith v. Dolan, 170 Md. 654 , 185 A. 453 (1936), in which the Court said: “The plaintiff sued for injuries sustained in a collision by one of the defendants’ taxicabs