Thomas v. Corso

Barnes, J., delivered the opinion of the Court. The appellants, Dr. Robert J. Thomas and Frederick Memorial Hospital, two of the defendants below, appeal from a judgment entered on May 17, 1971, against them for $99,609.24 by the Circuit Court for Montgomery County (John P. Moore, J.) in favor of the appellees, Mida Belle Corso, as surviving spouse of Faust Q. Corso, deceased, individually and as administratrix of her deceased husband’s estate, and the five children of Mr. and Mrs. Corso. There was a verdict in favor of the remaining. appellee, Robert Lee Miller, Jr., one of the defendants below: and a judgment was entered in his favor for costs. The principal questions on this appeal are (1) whether the trial court erred in declining to grant motions for directed verdicts and for judgments n.o.v. in favor of (a) Dr. Thomas and (b) the Hospital; (2) whether the trial court erred in its instructions to the jury in regard to alleged contributory negligence of the decedent Corso as a bar to recovery against Dr. Thomas, and (3) whether this Court should remand the case for a new trial on the issue, of liability for the introduction of additional evidence.

We have concluded that the trial court did not err and that we should not remand the case for- the purpose mentioned. We will accordingly affirm the judgment. On the evening of January 8, 1969, Corso and John R. Lyons, employees of the Baltimore and Ohio Railroad Company, attended a union meeting of the Brotherhood of Railway Carmen (AFL-CIO) at its union hall in Brunswick, Maryland. When the union meeting concluded at approximately 8:30 p.m., Corso drove his automobile with Lyons as a passenger to a social gathering of the union being held at Coates Restaurant, located on ⁸⁷ Maryland Route 180, approximately two miles from the union hall.

When they arrived at the restaurant, Corso discovered that the restaurant parking lot was filled to capacity and Corso parked along the side of Route 180 opposite the front of the restaurant at approximately 9:15 p.m. While at the restaurant, Lyons testified that Corso consumed shrimp and two cups of beer. The cups would hold four to five ounces of beer. After purchasing some shrimp and ice cream for his family, Corso, with Lyons, left the restaurant at approximately 10:30 p.m. to go home in the Corso automobile.

When they walked outside, it was sleeting. They then crossed the road to the parked automobile and began to prepare to clear the freezing rain from the front windshield and the rear window. Lyons was standing near the left rear fender of the car and Corso was near the left front fender. Both were standing approximately two feet off the paved portions of the road.

While standing there, Lyons observed an automobile approaching from the west on the side of the road where the Corso car was parked. He warned Corso of the approach of this car, and Corso acknowledged his notice of the approaching vehicle. The next thing Lyons remembered was a loud sound. He turned and saw Corso flying through the air, as if rolled up over the fender of an automobile.

He then saw him down the road about 35 or 40 feet. He did not see the car actually strike Corso. The automobile was driven by the appellee, Miller, who stopped some 100 feet from the point of impact and returned to the scene of the accident. Within a few minutes, State Trooper Victor E. Wolfe arrived.

Miller claimed that he saw no one on the road where the collision occurred, but heard a thump when going between 35 and 40 miles per hour, after which he came to a stop down the road. Both Trooper Wolfe and Miller testified that Corso was lying in the road some 40 feet from the Corso automobile. The thump was a loud one and left a good sized dent in the right front fender of the Miller car some two or three feet from the headlight. The aerial was also broken. ⁸⁸ When Lyons got to Corso, he found him unconscious with blood coming out of his nose and mouth.

He heard that Corso had regained consciousness before the ambulance arrived. Trooper Wolfe found Corso conscious, vomiting on the highway and complaining of pain in his right hip. The Hospital record indicates that Corso was brought to the Emergency Room at 11:10 p.m. in the Brunswick Ambulance. Miss Constance M. Halter, a registered nurse, who was on duty in the Emergency Room, checked Corso’s blood pressure, pulse and respiration.

In the Emergency Room record, written by Nurse Halter, she stated: “Was hit by an automobile. Complaining of ‘numbness’ in the right anterior thigh. Does not appear deformed and is able to move the right leg. Has abrasion of the frontal scalp.” She noted, “p. 84, r. 26, B.P. 80/60.” At 11:25 p.m. the record indicates B.P., “90/60”; at 11:35 p.m., “100/60.” For treatment, she noted, “Demerol 100 mg.

I.M. at 11:30 P.M., abrasion cleaned, Dr. R. J. Thomas at 11:25 P.M.” with disposition to “200 Hall 11:45 P.M.” Dr. Thomas signed the record but nothing was filled in for diagnosis. In explanation of the record, Nurse Halter explained that “I.M.” meant “intramuscularly” and that the reference to Dr. Thomas meant that she telephoned him at 11:25 p.m. to notify him of this new patient, what happened, his complaints and his vital signs. This was done because it was her duty to notify the doctor on call of any patient coming to the Emergency Room and to tell him what happened to the patient, his complaints and vital signs and then to carry out the doctor’s orders. All she knew about the collision was that Corso had been hit by an automobile and that was all she could tell Dr. Thomas about it.

It had to be the doctor’s decision on whether to admit the patient. Dr. Thomas instructed Nurse Halter to admit Corso as a patient and what to have done with him, as recorded on the “Doctors’ Orders” sheet of the Hospital record. Nurse Halter denied that Dr. Thomas requested her to keep Corgo in the Emergency Room for observation, as Dr. ⁸⁹ Thomas testified, and hence she had Corso admitted and transferred to 2 Main Hall at 11:45 p.m. She also denied that Dr. Thomas had asked her whether he should see Corso or that she had told Dr. Thomas that she did not think he needed to see Corso, as Dr. Thomas testified.

The Hospital has no residents or interns. The medical staff consists of private practicing physicians. From the medical staff, service is provided for the Hospital’s Emergency Room through a system of “on-call rosters.” The physicians make themselves available on a voluntary, rotating basis to treat patients who are brought to the Emergency Room. After the Emergency Room Nurse has telephoned the physician then on-call of the incoming patient’s vital signs, it is the duty of the physician to diagnose the patient’s condition, prescribe treatment and to determine whether admission to the Hospital is necessary.

Nurse Halter testified that Corso had been covered with blankets. She did not take Corso’s pulse after the initial finding of 84 because that seemed normal so that she was not concerned with it at the time. She was, however, concerned with his blood pressure as indicated by the fact that she took it every 10 minutes and admitted that her first blood pressure reading was low. She denied that she told Dr. Thomas of the blood pressure reading of 100/60 as he testified she did.

Her recollection would appear to be correct in that the 100/60 reading was taken at 11:35 p.m., whereas she telephoned Dr. Thomas at 11:25 p.m. when the blood pressure reading at 11:15 p.m. was 80/60 and at 11:25 p.m. was 90/60. This is important in view of Dr. Thomas’ testimony that any blood pressure under 100 is “definitely low.” The Hospital was filled to capacity because of an influenza epidemic, so that no rooms were available for Corso. He was transferred from the Emergency Room to 2 Main Hall at 11:45 p.m. by a hospital orderly and placed in the hall outside the nurse’s station. Mrs. Peggy Lou Strawsburg, a general duty nurse, and Mrs. Kathryn Nussbaum, the assistant nurse supervisor, attended ⁹⁰ Corso.

Nurse Strawsburg checked his vital signs. His blood pressure was 70/50, his pulse 120 and his respiration 40. She stated that Corso complained of pain but appeared to be rational. She knew Corso had, on Dr. Thomas’ instructions over the telephone, been given 100 milligrams of Demerol, the maximum dose.

She also knew that Demerol “will depress blood pressure.” She noticed that Corso’s skin was cool and perspiring, his breathing deep but rapid. At 12:15 a.m. he was asking for water frequently, his skin was warmer, he seemed to be more comfortable, but pain was still present. She noticed a strong odor of alcohol. At that time Corso was talking to his wife.

Her notes indicate that at 12:30 a.m. his blood pressure was 89/70. At 1:00 a.m. it was 94/70 with a pulse of 100 and respiration of 28, with a stronger pulse and continuing pain in the right thigh. At 1:30 a.m. he was quieter until 2:00 a.m. when she found Corso breathing very poorly in Cheyne-Stokes manner with no pulse. The attempts at pulmonary resuscitation proved to be ineffective.

Dr. Thomas pronounced Corso dead when he arrived at the Hospital at 2:30 a.m. Nurse Nussbaum saw Corso for a few minutes after midnight in the 2 Main Hall. He complained to her of his right leg. She checked and saw nothing unusual.

He asked her for water, but she refused to give it to him because he had been drinking. She recalled that Nurse Strawsburg had said that she was concerned about his blood pressure of 70/50. She paid little attention to his abnormal vital signs and his requests for water because he had been given Demerol and had been drinking. The next time she saw Corso was during the giving of cardiac pulmonary resuscitation by Nurse Strawsburg and Miss Dalgarn, a Registered Nurse.

Dr. Thomas, a general surgeon, was on-call the evening of the accident. This required him to be available on short notice during the 24 hour on-call period to handle situations arising in the Emergency Room fitting his category. That evening he had eaten dinner, watched T.V. and gone to bed. He had not had anything to drink.

He was asleep ⁹¹ when Nurse Halter telephoned him about 11:30 p.m. He was at his home — some 10 minutes from the Hospital— the entire time Corso was there until he received the second call after 2:00 p.m. that Corso was dying. He testified that Corso was admitted to the Hospital as his patient and that his patients’ health depended upon his professional ability. He further stated that it was his responsibility to see to it that Corso was properly diagnosed and treated and to make himself physically available, if necessary, to any surgical patients coming to the Emergency Room without a private physican.

He also stated that Corso was never seen by a physician until he arrived at the Hospital around 2:30 a.m. and pronounced him dead. When Dr. Thomas arrived at the Hospital, he observed the deformity of Corso’s leg, shortened and turned outward, which indicated the possibility of a fractured hip, a condition sufficiently serious to require immediate treatment. He admitted that Corso had no other accident while in the Hospital and that the fractures later found on the autopsy were present when Corso arrived at the Emergency Room as a result of his initial injury. It was his opinion that the fractures had changed position and became clinically apparent after Corso left the Emergency Room, so that he would not have seen any more in this regard than did Nurse Halter, although he would likely have made a more thorough examination.

Dr. Thomas ordered that Dr. Robert J. Furie, a competent physician and pathologist, perform an autopsy upon Corso. The autopsy revealed that Corso had a lacerated liver, a “badly comminuted” fracture of the left femoral neck in the hip area with overriding, external rotation and hemorrhage. It also showed badly comminuted fractures in the pelvic area with jagged fragments penetrating the peritoneal cavity as well as fracture and separation of the coccyx from the sacrum with extensive hemorrhage around these fractures. The vital organs showed no signs of pre-existing disease.

Both Dr. Thomas, ⁹² as Medical Examiner, and Dr. Furie certified that the cause of Corso’s death was “traumatic shock, fractured femur and pelvis.” Dr. Thomas testified that upon the first call by Nurse Halter, he had been told that Corso had been struck by an automobile, was complaining of numbness in his right thigh, had an abrasion on his forehead, was conscious, and had a blood pressure reading of 100/90 with a pulse of 80-84. He later testified that he was advised by Nurse Halter of all three blood pressure readings of 80/60, 90/60 and 100/60 at the time of the first call and that Nurse Halter stated in answer to a specific question that she did not believe he needed to see Corso. As we have observed, Nurse Halter denies that she stated this or gave Dr. Thomas the blood pressure reading of 100/60. He denied that he was told that Corso had “pain” in his thigh although he had admitted that he had inadvertently stated this in his deposition.

At first he differentiated between “pain” and “numbness,” stating that “pain” aggravates shock and is a specific complaint as compared with a vague complaint of “numbness.” When confronted with his deposition testimony that he was told of the pain complaint, he stated that it would have made no difference to him. He stated: “When I got my first call from the emergency room that he was complaining of pain or numbness, I think it is not a major point in my judgment how I would have handled the situation. I still would have done the same thing, everything else taken into consideration.” Dr. Thomas also stated that it is difficult for a patient to explain his complaint. After receiving the information from Nurse Halter over the telephone, he instructed her to admit Corso for observation and x-rays in the morning and gave a list of orders, including the administration of 100 milligrams of Demerol because Corso appeared to be unsettled.

He ordered Corso to be kept in the Emergency Room for ob ⁹³ servation (This was denied by Nurse Halter.) because the Emergency Room was usually quieter, had observation rooms and Corso could best be observed there. Dr. Thomas also testified: “My experience in treating any patient that comes into the emergency room that has had trauma: I try as a rule if I can to keep everybody for a period of observation. This observation may be for an hour or two hours, a couple or hours or overnight or two or three days. This is a practice I have because I know from my experience that what appears to be in an original evaluation may change.

I like to have the patient where I know about it, where I can do something about it rather than say, ‘Go home and come back tomorrow,’ or something like that.” Dr. Thomas recognized that fractures can be present even though no deformities are present or limited motion is exhibited. He also recognized that Corso “may have fractures” and that this was one of the reasons why Corso was kept for observation. Dr. Thomas knew nothing of what happened to Corso between 11:30 p.m. and 2:15 a.m. other than what he learned from the nurses and from the Hospital record. When he arrived at the Hospital, the nurses told him that Corso had seemed fine, was asking for a urinal and suddenly went into a state of collapse.

He had only received two telephone calls in regard to Corso. He insisted that the physician on call cannot see or be with every patient but must rely upon the nurses to make the clinical observation on which he can make his judgments. He relied upon the information given him by Nurse Halter and especially her statement (denied by her) that Corso seemed in satisfactory condition and did not need to be seen by him. He stated that he was no more competent than the nurse to make observations but was more competent to put the observations all together to make a diag ⁹⁴ nosis.

He never made a diagnosis in regard to Corso although the Hospital rules require a provisional diagnosis before admission where necessary, and in the case of an emergency, as soon after admission as possible. When asked why he did not submit a bill for professional services to his patient Corso, Dr. Thomas stated: “I didn’t do anything, I mean — right—I didn’t do anything.” Dr. Thomas strongly contended, however, that he should have been notified at 12:05 a.m. of the significant change in Corso’s vital signs by the nurses in charge of him, in that those changes were positive symptoms of shock which required his immediate care and attention. To a trained nurse the findings at 12:05 a.m. would indicate a critical condition and that Corso’s life was then in jeopardy although not in danger of immediate death. Corso “definitely needed the attention of a physician at that time.” It is a standard procedure and customary practice for nurses as part of the team to advise the physician of any significant change in vital signs, so that it was unnecessary for him to have that written as an order or for him to call back and inquire how his patient was.

He further stated that, had he been notified of the change in Corso’s vital signs, he would have gone to the Hospital immediately and detailed what he would have probably done for a patient in shock which agreed with the treatment indicated by Dr. Furie. Dr. Thomas declined to say for sure that he could have then saved Corso’s life in that “Only God knows the answer to that question,” but he did state that he “might have”, and further that the lack of treatment at that point increased the danger of Corso’s losing his life. He said that it would be fair to say that he had treated people with symptoms that bad and that he had saved their lives. Dr. Furie testified that, in his opinion, Corso’s chance for survival was linked to the treatment he received.

He described “shock” as a symptom complex involving the ineffective flow of blood to the tissues so that in suffering ⁹⁵ both a lack of nutriment and removal of waste, the tissues become sick everywhere in the body and, if not remedied, tissue death will follow. It is vitally important to treat shock early in that experience has shown that if this is not done promptly and effectively, it becomes irreversible so that recovery is not frequent. It is immediately urgent when confronted with the symptoms of shock to take all appropriate measures to prevent it from slipping into irreversibility. Dr. Furie gave the symptoms of shock as a lowering of blood pressure, weakness, perspiration, rapid pulse, rapid respiration, diminished perception by the senses including pain, urgent thirst and apprehensiveness.

He further stated that a systolic blood pressure (the higher of the two tests) of less than 100 is inadequate and is a danger sign requiring a physician’s attention. A pulse of 120 at 12:05 a.m. was too rapid. In treating shock, it is important to relieve pain. In Dr. Furie’s opinion Corso needed the immediate attention of a physician from the time he arrived at the Hospital, not only because of his low blood pressure at that time, but because he had been struck by an automobile.

He reasoned that personal treatment was necessary, as contrasted with telephone treatment, by stating: “The physical forces involved in the vehicular accidents are of such a magnitude that you must presume the possibility of injuries, visible or not. * * * Because of the magnitude of the injury possibilities, meaning what might happen as a result of the accident, it takes a very skillful judgment to decide when in fact life threatening damage has occurred, such as internal bleeding, which would not be visible but have to be detected, or shock, all those life threatening consequences of a force of an accident. * * * In reaching an assessment of how seriously injured the patient might be, a great many things enter into that judgment. And the physi ⁹⁶ cian in physical presence can exercise his senses to synthesize a judgment from that input, that it would be dangerous to do it through somebody else’s judgment and senses.” In considering the vital signs registered at 12:05 a.m., Dr. Furie testified that as a physician he would have wanted to have been advised of them, in that'they indicated “a very precarious, life-threatening situation that demands immediate treatment.” In his opinion, however, Corso could well have been in shock with a blood pressure reading of 100/60 arid that vital signs should be determined very frequently, at least every 15 minutes for persons having the symptoms of shock. He further testified that, in his opinion, Corso’s impaired breathing did not come on suddenly but gradually because the “very nature of the mechanism precludes a sudden onset of Cheyne-Stokes.” Nurses Strawsburg and Nussbaum challenged the claim of Dr. Thomas that it was routine, customary practice to notify the physician of significant changes in the vital signs of a patient, unless those changes did not improve. However, both nurses admitted that they would call the physician if they believed that a patient was in shock, and that the blood pressure reading of 70/50 at 12:05 a.m. was a shock blood pressure, as were the other findings at that time, especially the pulse of 120.

Both nurses knew that Corso was asking for water but they gave little, if any, thought to their knowledge that thirst is a symptom of shock because Corso had been drinking. Dr. Thomas, however, testified that drinking by Corso had nothing to do with his judgment. Both Dr. Thomas and Dr. Furie testified that the alcoholic content of Corso’s blood was found to be .05% by the State Medical Examiner’s Office. This alcoholic content does not indicate intoxication under the Maryland law, which was stated to be .15%. 1 (a) Dr. Thomas earnestly urges us to hold that the trial ⁹⁷ court erred in failing to grant his motion for a directed verdict and his motion for a judgment n.o.v. for three reasons, i.e., (i) the plaintiffs below failed to establish by expert evidence the standard of care in medical malpractice cases in the Frederick area and the violation of such a standard of care; (ii) failed to establish the causal connection between the alleged negligence and the injury to Corso; and, (iii) failed to establish that the alleged negligence was the proximate cause of Corso’s injury.

We shall now consider these contentions in the order indicated. (i) Although 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, see Johns Hopkins Hospital v. Genda, 255 Md. 616 , 258 A. 2d 595 (1969), involving an intricate open heart operation and a broken fragment of needle left in the patient’s chest, it is well recognized by the Maryland cases that there may be cases in which no expert testimony is required to establish the standard of care or its breach by the physician. We discussed the law in this regard in Central Cab Co. v. Clarke, 259 Md. 542, 551-52 , 270 A. 2d 662, 667-68 (1970). We stated: “The situation in the instant case [involving the malpractice of an attorney in failing to notify his client of his termination of employment whereby a default judgment was obtained against the client] is analogous to cases involving medical malpractice in which a dentist pulled the wrong tooth, and our predecessors held in affirming a judgment for the plaintiff that there was no necessity for expert testimony to establish that a dentist should not pull the wrong tooth.

McClees v. Cohen, 158 Md. 60 , 148 A. 124 (1930). The same rule applies in cases in which physicians have done an obviously negligent act such as accidentally ampu ⁹⁸ tating the wrong arm, or negligently leaving a sponge in a patient’s body. Rural Educational Ass’n v. Bush, 42 Tenn. App. 34 , 298 S.W.2d 761 (1956) and Fredrickson v. Maw, 119 Utah 385 , 227 P. 2d 772 (1951). “In Butts v. Watts, 290 S.W.2d 777, 779 (Ky. 1956), it was stated: ‘There is a limitation on the rule that expert testimony is essential to support a cause of action for malpractice where the