Tucker v. University Specialty Hospital

MEREDITH, Judge. The appellants are the surviving children and parents of Judy Lynch (“the patient” or “Mrs. Lynch”), who died at the age of 53 as a consequence of a lethal overdose of Oxycontin pain medication while Mrs. Lynch was a post-surgical inpatient at University Specialty Hospital (“the hospital”), appel-lee. In opposition to a motion for summary judgment filed by the hospital, the patient produced expert testimony expressing ⁵⁴ an opinion that the patient’s death should not have occurred in the absence of negligence on the part of the defendant hospital. The Circuit Court for Baltimore City was not persuaded that the testimony of the patient’s experts was sufficient to take the claim of medical negligence to the jury, and entered summary judgment for the hospital.

Appellants noted this appeal. ISSUES Appellants present two questions: I. Did the trial court err in granting summary judgment by not allowing the appellants to rely upon Meda v. Brown in establishing legally sufficient evidence of negligence?

II

Did the trial court err in granting summary judgment by not finding legally sufficient evidence to meet the requirement of res ipsa loquitur? Because we conclude that the expert testimony presented by appellants was legally sufficient to take their case to the jury under Meda v. Brown, 318 Md. 418 , 569 A.2d 202 (1990), we shall vacate the judgment and remand the case for further proceedings. Consequently, we do not need to specifically address the second question raised by the appellants, although we shall observe that our reading of Meda v. Brown persuades us that this is not an appropriate case for permitting the jury to infer that the defendant was negligent, by resorting to the doctrine of res ipsa loquitur, without the need for expert testimony. FACTS The evidentiary documents and deposition transcripts in the record reflect the following.

Having previously undergone surgery at another facility, Mrs. Lynch was admitted to appellee’s facility for wound care and rehabilitation on March 13, 2002. During her stay at the appellee hospital, she received multiple prescription medications, including Oxycontin, a narcotic medication used for relief of pain. She died on March 24, 2002, and the cause of her death was a toxic overdose of Oxycontin. ⁵⁵ At approximately 7:00 p.m. on March 23, 2002, Alma Ebra-do, R.N., came on duty and was assigned to care for Mrs. Lynch. According to Nurse Ebrado’s deposition testimony, she administered 20 mg of Oxyfast (a fast acting form of Oxycontin) to Mrs. Lynch at 9:00 p.m., and administered the daily order medications, which included 40 mg of Oxycontin, at 10:00 p.m.

Nurse Ebrado also testified that she entered Mrs. Lynch’s room at approximately 6:55 a.m. on March 24, 2002, and found the patient to be “sleepy” but “easily arousable.” At 7:00 a.m. on March 24, 2002, Nurse Ebrado’s shift ended, and she was relieved by Denise Mosley, R.N. According to Nurse Mosley’s deposition testimony, she and Nurse Ebrado physically counted the narcotics assigned to Mrs. Lynch’s room and confirmed that no medication was missing. At 7:25 a.m. Nurse Mosley entered Mrs. Lynch’s room and found her blue, with frothy secretions coming from her mouth. A “code blue” was called, and Mrs. Lynch was transferred to University of Maryland Medical Center, but despite efforts to resuscitate her, Mrs. Lynch was pronounced dead at 8:20 a.m.

On March 25, 2002, the Medical Examiner’s Office for the State of Maryland performed an autopsy. The medical examiner concluded that Mrs. Lynch died of “narcotic intoxication complicating chronic obstructive pulmonary disease.” The evidence established — and the parties agree — that Mrs. Lynch died as a result of a lethal dose of Oxycontin. The deposition testimony of Nurse Mosley included evidence that the hospital’s policy was to strictly control and limit access to Oxycontin. The hospital had “protocols ... that there is a certain way that nurses have to treat narcotics in the dispensing of narcotics.” The protocols, which were made part of the record, describe the steps that must be taken in administering medications, and state in part: Check patient’s ID band for name and medical record number against MAR/TAR.

Administering nurse m,ust witness medication consumption. Never leave medications unattended at the bedside. ⁵⁶ Medications may not be kept at the bedside for self administration unless ordered by the physician/designee. (Emphasis added). Nurse Mosley also testified that the only people supplying Oxycontin to Mrs. Lynch were staff members of the hospital.

Although the hospital suggested it would have been possible for a family member to provide the excess Oxycontin, and noted that there was evidence that one of Mrs. Lynch’s daughters had taken Oxycontin many years before her mother’s hospitalization, that daughter testified that she had had no access to Oxycontin as of 2002. There was also testimony that no family members were present at the hospital when Mrs. Lynch died. Deposition testimony of the family members reflected that they had last visited Mrs. Lynch two days prior to her death. Appellants designated two experts — Gary Witman, M.D., and Yale Caplin, Ph.D. — to testify in support of their claim of medical negligence.

The deposition testimony of both experts expressed the opinion that the lethal dose of Oxycontin was ingested within approximately one hour of Mrs. Lynch’s death. Dr. Witman testified that the lethal concentration of Oxycontin could not have resulted from the dosage of Oxycontin prescribed by Mrs. Lynch’s treating physician, stating: “[I]t is impossible that the dose of medication that was prescribed was responsible for the drug levels that this patient had at the time of her death.” Addressing the standard of care issue, Dr. Witman acknowledged that he could not determine specifically how Mrs. Lynch got the lethal dose of Oxycontin, or who administered it, but he nevertheless expressed his opinion that the appellee breached the standard of care it owed to the patient. In this regard, Dr. Witman testified that “the patient was under the exclusive control of hospital personnel at the time of her death, and the type of occurrence in a hospital setting, with a toxic level of a narcotic analgesic, should not occur except in a case of negligence.” He further testified: ⁵⁷ Q. So you do see violations of the standard of care in this case, you’re just not sure who committed them; is that correct? A. Yes, counsel.

A. What I stated is that the type of occurrence in a hospital setting, with a toxic level of Oxycodone, which should not occur except if there is negligence. University Specialty Hospital moved for summary judgment, arguing that appellants’ expert testimony was insufficient to make out a prima facie case of negligence under Meda, supra. Appellee also contended that Maryland law does not permit recovery under the doctrine of res ipsa loquitur in medical malpractice cases. In granting the defendant’s motion for summary judgment, the motions judge ruled that Meda was not applicable.

The motions judge further ruled that appellants were not entitled to have their case submitted to the jury on a res ipsa loquitur theory. DISCUSSION Having reviewed in a light most favorable to the non-moving party the documents and transcripts submitted in connection with the motion for summary judgment, we are persuaded that the appellants presented sufficient evidence, including expert testimony, to permit inferences of negligence under the rule enunciated by the Court of Appeals in Meda . Because these inferences of negligence were permissible from the evidence in the record, it was inappropriate to enter summary judgment in favor of the hospital. Standard of Review The standard of review when a motion for summary judgment has been granted in favor of the defendant is well settled.

As the Court of Appeals stated in Lee v. Cline, 384 Md. 245, 248 , 863 A.2d 297 (2004) (quoting from Walk v. Hartford Casualty, 382 Md. 1, 14 , 852 A.2d 98 , (2004)), “[wje review the record in the light most favorable to the non-moving party [here the plaintiff] and construe any reasonable ⁵⁸ inferences which may be drawn from the facts against the movant.” The procedure is not a substitute for trial, and the motions judge deciding a motion for summary judgment is not to weigh the evidence. Pittman v. Atlantic Realty Company, 359 Md. 513, 537-38 , 754 A.2d 1030 (2000). Moreover, “all inferences must be resolved against the moving party when determining whether a factual dispute exists, even when the underlying facts are undisputed.” Gross v. Sussex Inc., 332 Md. 247, 256 , 630 A.2d 1156 (1993). A. The requirement of expert testimony in medical malpractice cases.

Because of the complexity of medical malpractice cases, the Court of Appeals has made clear that, in such cases, there ordinarily must be expert testimony to establish breach of the standard of care and causation. Meda, supra, 318 Md. at 428 , 569 A.2d 202 ; Johns Hopkins Hospital v. Genda, 255 Md. 616 , 258 A.2d 595 (1969). This requirement exists because the issues considered in the typical medical malpractice case are generally outside the understanding of ordinary lay people. Although medical malpractice cases may exist in which the breach of duty, injury, and causation are so obvious that expert testimony is not required, such cases are extremely rare, and the case under consideration is clearly not one of them.

Without expert testimony, the appellants would have had evidence that a patient died in the hospital, and little else. It was only with the aid of expert testimony that appellants were able to develop evidence as to such things as the cause of death, the fact that the death could not have occurred as a result of the dosages of medication actually prescribed, the magnitude of the overdose necessary to cause death, and the fact that death due to a toxic level of Oxycontin would typically not occur in the hospital setting in the absence of negligence. B. Res ipsa loquitur — as recognized in Maryland — is not available in cases requiring expert testimony. Res ipsa loquitur (translated as “the thing speaks for itself’) simply describes a set of evidentiary conditions that ⁵⁹ permit, but do not require, a fact finder to infer negligence based upon proof that certain facts are more probable than not.

Norris v. Ross Stores, Inc., 159 Md.App. 323, 329 , 859 A.2d 266 (2004). In order to rely upon the doctrine successfully, a plaintiff must present evidence of “(1) a casualty of a kind that does not ordinarily occur absent negligence; (2) that was caused by an instrumentality exclusively in the defendant’s control; and (3) that was not caused by an act or omission of the plaintiff.” Holzhauer v. Saks & Co., 346 Md. 328, 335-36 , 697 A.2d 89 (1997). See Restatement (Second) of Torts (1965) § 328D; Maryland Civil Pattern Jury Instructions, MPJI-Cv 19:8 (4th ed. 2002). If the plaintiff presents evidence as to each of these conditions, and if the jury finds each condition to be more probable than not, the jury may find negligence even in the absence of evidence as to the exact mechanism of injury or the precise manner in which the defendant was negligent.

Meda, supra,, 318 Md. at 425 , 569 A.2d 202 . But the Court of Appeals has held that the doctrine of res ipsa loquitur is not available in cases requiring expert testimony. In Meda, supra, a medical malpractice case against an anesthesiologist was tried to a verdict in favor of the plaintiff. The claim arose out of an ulnar nerve injury that manifested immediately after surgery.

The plaintiff in Meda presented evidence through expert witnesses that the anesthesiologist had a duty to assure that the patient was properly positioned on the operating room table so as to prevent the application of pressure against vulnerable nerves. The plaintiffs experts testified that the probable cause of the nerve injury was compression of the ulnar nerve, though other possible causes could not be totally excluded. Id. at 427 n. 2, 569 A.2d 202 . Each expert testified that the injury was one that ordinarily would not occur in the absence of negligence.

The experts were unable, however, to describe the exact mechanism of the compression injury. They were unable to say, for example, whether the arm had been positioned improperly at the outset, or properly positioned, but improperly secured. Nevertheless, the experts expressed an opinion that ⁶⁰ the anesthesiologist breached standards of care in permitting the ulnar nerve injury to occur. When the case was submitted to the jury, no instruction on res ipsa loquitur was given.

After a verdict in favor of the plaintiff, the trial judge granted a judgment notwithstanding the verdict, concluding that the opinions of the plaintiffs experts rested, in part, on res ipsa loquitur, a doctrine then thought to be completely unavailable in medical malpractice cases. This Court subsequently reversed, and directed entry of judgment in accordance with the jury’s verdict on the ground that the concept of res ipsa loquitur was applicable because laymen could properly infer negligence from the happening of an unusual injury to a previously healthy part of the patient’s body remote from the surgery site, and because the applicability of res ipsa loquitur was further validated by the expert testimony. Upon further review, the Court of Appeals affirmed “not on the basis of the applicability of res ipsa loquitur, but because the testimony was sufficient to support the inferential conclusion of negligence drawn by the plaintiffs experts.” Id. at 420 , 569 A.2d 202 (emphasis added). In this regard, the Court of Appeals held: Each doctor, based upon his knowledge of the facts and upon his expertise, concluded that Mrs. Brown’s injury was one that ordinarily would not have occurred in the absence of negligence on the part of the anesthesiologist.

This inferential reasoning has a familiar ring to it. It is a major part of the concept of res ipsa loquitur. It is not, however, res ipsa loquitur. Res ipsa loquitur, as we now utilize that concept in the law