University of Maryland Medical System Corp. v. Gholston

DEBORAH S. EYLER, J. In the Circuit Court for Baltimore City, Darryl Gholston, Jr. (“Darryl”), the appellee and a minor, brought suit through Nicole Player, his mother, for medical malpractice against the University of Maryland Medical System Corporation (“UMMS”), the appellant. The case was tried to a jury for six days. A verdict was returned in favor of Darryl and judgment ³²⁶ was entered for $8,605 million dollars. 1 UMMS moved for judgment notwithstanding the verdict (“JNOV”) and for a new trial. The motions were denied and this appeal followed.

UMMS presents two questions for review, which we have reworded slightly: I. Was the evidence legally sufficient to support a finding by a preponderance of the evidence that Darryl’s injuries were caused by a breach of the standard of care by UMMS?

II

Was the evidence legally sufficient to support a finding by a preponderance of the evidence of damages for future lost wages for Darryl? For the following reasons, we shall affirm the circuit court’s judgment. FACTS AND PROCEEDINGS This case concerns Darryl’s premature birth at UMMS, on September 19, 2002. Darryl’s mother, Ms. Player, became pregnant in March 2002.

Her expected due date was December 24, 2002. She was 23 years old and this was her first pregnancy. Ms. Player received early routine prenatal care at Maryland General Hospital before changing to UMMS. On August 30, 2002, Ms. Player came to a UMMS clinic for her initial appointment.

After a prenatal examination and sonogram that showed cervical shortening, Ms. Player was sent to Labor and Delivery for evaluation. She was 23 weeks pregnant. At UMMS, a physical examination showed that Ms. Player’s cervix was prematurely dilated to 4 centimeters, that it was 100% effaced, meaning that it was shortened, and that her membranes, i.e., the amniotic sac in which the developing fetus was located, were bulging. A sonogram was performed, which confirmed the premature dilatation and shortening of ³²⁷ the cervix and showed increased fluid in the cervical canal.

Based upon the measurements from the sonogram, the fetus’s estimated gestational age was 23.2 weeks; a full term pregnancy is 38 weeks and beyond. The sonogram measurements also showed an estimated fetal weight of 723 grams, which is slightly more than 1 pounds. The examination and sonogram were consistent with possible incompetent cervix and premature labor. For those reasons, Ms. Player was admitted to the Obstetrical Service of UMMS for treatment with medication and other modalities.

The objective was to extend her pregnancy for as long as possible to increase the likelihood of survival of her fetus. The care she received succeeded in extending the pregnancy for close to three weeks. On September 19, 2002, at 11:42 p.m., Darryl was born by emergency cesarean section. The medical malpractice claim in this case concerns the treatment that was rendered to Ms. Player and Darryl that day.

Between 10:00 a.m. and 11:00 a.m. that morning, a sonogram was performed upon Ms. Player by Christopher Har-man, M.D., Director and Vice-Chair of UMMS’s Division of Maternal and Fetal Medicine. His sonogram report, which was faxed immediately to obstetrician Lindsay Alger, M.D., revealed findings as stated by Dr. Harman in the comment section of the report: “The umbilical cord has prolapsed through the length of the cervix and lies within a few mm [millimeters] of the vagina. The patient is at extreme risk for PPROM and cord prolapse.” PPROM is an acronym for preterm, premature, rupture of membranes. “Cord prolapse” is a condition in which the umbilical cord has descended into the cervix, beneath the baby’s location. In the recommendation section of the report, Dr. Harman stated: “I would recommend continuous monitoring on [the Labor and Delivery floor], with readiness for stat [Cesarean section] at all times.

Our experience with htis (sic) entity is that it does not presist (sic) for very long without PPROM.” At the same time, Dr. Harman prepared a letter report to Dr. Alger, which also immediately was faxed to her. The letter states in part: ³²⁸ Our 15 minute discussion [with Ms. Player and her family] included transfer to the labor floor for continuous observation there, due to the unexpected diagnosis of occult cord prolapse. Most of the length of the umbilical cord lies within the endocervical canal, and this extends down to the portion of amniotic fluid in the membranes at the external os.[ 2 ] Since the cervix is still long, the cord is essentially trapped within the endocervical canal. This is not the same as our more common finding of cord lying above the internal os[ 3 ] when there is no presenting part, and does represent an imminent danger of acute cord prolapse, probably life-threatening because the entire length of the cord is in the cervix.

Put in ordinary lay terms, the umbilical cord was within the cervix, below the lowest presenting part of the fetus, thus creating the dangerous condition that the cord could prolapse, that is, be squeezed shut by contractions, thus cutting off the blood flow to the fetus. Dr. Harman also called staff members on the Labor and Delivery Floor and relayed his findings. As noted above, Darryl was delivered by emergency cesarean section at 11:42 p.m. (The placenta was delivered at 11:43 p.m.) His Apgar scores, which are a measure of neonatal well-being, were 1 out of 10 at one minute, 5 out of 10 at five minutes, and 6 out of ten at ten minutes.

He was blue, not breathing, and flaccid with blood pressure that was low and unstable and a significantly reduced blood volume. He was intubated, resuscitated by means of chest compressions and massage, transfused twice, and given medications to elevate and stabilize his blood pressure. He remained in the Neonatal Intensive Care Unit (“NICU”) for two months before being discharged to home. ³²⁹ According to Ms. Player, Darryl is developmental^ delayed. As a young child, he was in a wheelchair.

He did not learn to walk until he was 3 % and then with the use of braces. He did not start speaking in full sentences until he was 4 \ At the time of trial, Darryl was nine years old but still was not able to run. He attends school and is in a regular second grade class, but he has an aide to help him. We shall include additional facts in our discussion of the issues.

STANDARD OF REVIEW The standard of review of a question of the sufficiency of the evidence is de novo. Polk v. State, 378 Md. 1, 7-8 , 835 A.2d 575 (2003). In a civil case, the evidence is legally sufficient to support a finding in support of the prevailing party if, on the facts adduced at trial viewed most favorably to that party, any reasonable fact finder could find the existence of the elements of the cause of action by a preponderance of the evidence. Hoffman v. Stamper, 385 Md. 1, 16 , 867 A.2d 276 (2005).

In a jury trial, the quantum of legally sufficient evidence needed to create a jury question is slight. Id. If there is legally sufficient evidence to support a finding in favor of the party bearing the burden of proof, it would be error on the part of the trial judge to grant a motion for judgment in favor of the opposing party and withhold the case from the jury for decision. The standard of review of a court’s denial of a motion for JNOV is the same as the standard of review of a court’s denial of a motion for judgment at the close of the evidence, ie., whether on the evidence presented a reasonable fact-finder could find the elements of the cause of action by a preponderance of the evidence.

Washington Metro. Area Transit Auth. v. Djan, 187 Md.App. 487, 491-92 , 979 A.2d 194 (2009). The standard of review of the denial of a motion for new trial is abuse of discretion. Miller v. State, 380 Md. 1, 92 , 843 A.2d 803 (2004). ³³⁰ DISCUSSION I. Sufficiency of Evidence of Causation The case at bar is a tort action for medical malpractice, which is a form of negligence.

UMMS was the sole defendant, as the employer of the health care providers involved in the critical aspects of Darryl’s care. The elements of the tort are duty (standard of care); breach of the standard of care; causation of injury; and damages. Muti v. Univ. of Md. Med. Sys.

Corp., 197 Md.App. 561, 580 , 14 A.3d 1179 (2011). In its first question presented, UMMS contends the evidence adduced at trial was legally insufficient to support a reasonable finding, by a preponderance of the evidence, that any breach in the standard of care by its agents was the cause-in-fact or the legal cause of Darryl’s injuries. 4 Darryl’s theory of prosecution at trial, which was presented primarily through the testimony of expert witnesses, was that there were two deviations from the standard of care that caused his injuries. Darryl’s primary theory of breach was that from 10:15 to 10:45 p.m., Ms. Player exhibited the symptoms of an acute cord prolapse that Dr. Harman had predicted and specifically warned about in his earlier sonogram report and letter; and that the standard of care required that the physician agents of UMMS perform an immediate cesarean section in the face of those symptoms. That did not happen, however, and there was a delay in delivery of approximately 40 minutes.

Darryl’s second theory of breach focused on an earlier period in the day in question, at about 5:00 p.m. At that time, physician agents of UMMS failed to determine that Ms. Player had a serious infection that necessitated immediate ³³¹ delivery of the fetus; and if delivery would have taken place then, Darryl would not have suffered the injuries he did. Six expert witnesses testified on behalf of Darryl: David Massari, Ph.D., a neuropsychologist; Daniel Adler, M.D., a pediatric neurologist; Richard Stokes, M.D., an obstetrician/gynecologist; Carolyn Crawford, M.D., a neonatologist; Steven Shedlin, a certified rehabilitation counselor specializing in vocational rehabilitation; and Nancy Bond, R.N., who presented a “life plan” detailing the care Darryl would require. Dr. Massari explained that, as a neuropsychologist, he is experienced in assessing adults and children with brain injuries.

He examined Darryl’s past medical records and performed a physical examination of him. Dr. Massari determined that Darryl has an I.Q. in the high 80’s, which is in the lower 20th percentile, ie., low average. He has deficits in expressive language and communication skills, in particular in his ability to articulate thoughts. He has significant deficits in his copying skills and his visual memory.

He is very weak in his “emerging executive functions,” that is, his decision-making and organizational abilities. He also suffers from deficits in pure fine motor speed and dexterity, and manifestations of cerebral palsy. Dr. Massari acknowledged that Darryl’s deficits were even more acute when he was younger than they are now. As a young child, he functioned in the mentally retarded range and could not walk or talk at the ages at which children learn to do so.

He has since improved, and is functioning well in the second grade. Dr. Massari opined, however, that Darryl’s ability to function likely will peak in middle school and fall as he reaches the age at which abstract and conceptual thinking becomes important. He probably will graduate from high school but will not be able to complete college. And the types of vocations, either “blue collar” or “white collar,” that he might be suited to, given his likely level of education, he will have difficulty accomplishing because of his deficits in motor skills, strength, speed, processing speed, cognitive function, and manual dexterity.

In Dr. Massari’s opinion, Darryl will be a disabled worker. ³³² Daniel Adler, M.D., a pediatric neurologist, offered opinions about the causes of Darryl’s deficits. He opined to a reasonable degree of medical certainty that the deficits Darryl suffers were not caused by his prematurity, but were caused by a period of deprivation of oxygen to the brain due to the cord prolapse. Dr. Adler stated that, had Darryl been delivered by 11:05 p.m. (instead of the 11:42 p.m. delivery time), the neurological problems he now suffers would not exist.

Specifically, Dr. Adler opined that the neurological problems Darryl experienced in his early life and continues to experience resulted from the abrupt loss of oxygen that occurred due to compression of the prolapsed umbilical cord. Dr. Adler explained that Darryl did not have any of the complications that are associated with premature delivery and resulting deficits. These complications include massive hemorrhaging of blood into the brain; major infection of the blood; and complications to the bowel that can cause the bowel to burst. Darryl suffered a minor hemorrhage of blood into the brain that would not be associated with deficits; he did not have the other complications associated with prematurity.

Also, he did not have the physical neurological symptoms associated with pre-term birth, namely, increased muscle tone, ie., stiffness. On the contrary, he had loose muscles, that is, low muscle tone. Because he was only 26 weeks, however, his brain was more likely to be damaged by reduced oxygen, ie., hypoxia, than would be a fetus in a later stage of development. Therefore, the hypoxia he suffered as a result of the prolapsed cord was more likely to cause brain damage in Darryl than in a fetus that was more developed.

Dr. Adler’s conclusion was that “the injury [that Darryl suffered to his brain] is not an injury associated with prematurity. The injury he has is an injury associated with lack of oxygen.” Richard Stokes, M.D., an obstetrician/gynecologist, testified for Darryl about the standard of care and breaches by UMMS agents, and also about causation of injuries. Dr. Stokes explained what is meant by “cord prolapse.” He stated: More than 99 times out of 100, certainly when the baby is head first, the cord is up in the womb. It is very rare for ³³³ the cord to be in front of the baby’s head.

Now, this cord wasn’t just in front of the baby’s head. As [Dr. Harman] said [in his report], it was way down here. [Pointing to a diagram]. This is called the cervix. So it had come all the way through the cervix and was, as [Dr. Harman] said, ‘a few millimeters from the vagina....

When [Ms. Player] has contractions, this is going to bulge out and impact the exam since she had [a] bulging bag of water.... [Y]ou can see where there’s no cervix. When it bulges, it’s bulging into the vagina. There’s no place else for it to bulge. And, if the cord is here, when it bulges the cord is bulging into the vagina too.

Dr. Stokes testified that he agreed with Dr. Harman’s assessment that the cord prolapse in this situation was dangerous and potentially life-threatening. Dr. Stokes opined that, on the afternoon of September 19, 2002, the UMMS health care providers breached the standard of care by failing to properly examine Ms. Player to detect the signs of an infection and to diagnose that she in fact had an infection in her uterus that required a delivery by 5:00 p.m., which was shortly after the infection should have been discovered. He opined that there were signs of infection present that afternoon. He was not of the view that the infection caused any of Darryl’s deficits.

Rather, on breach of the standard of care issue, he merely opined that the delivery should have been performed by 5:00 p.m., because by then the doctors involved in Ms. Player’s care should have determined that she had an infection that necessitated delivery; and if delivery had happened then, the injuries caused later that night by the cord prolapse would not have happened. Dr. Stokes further opined that, when the very signs that Dr. Harman had warned were likely to happen and should be monitored did happen, the UMMS health care providers did not conform to the standard of care by performing a “stat” emergency cesarean section, that is one performed within “ten minutes.” The ominous signs began at 10:15 p.m., when Ms. Player was experiencing contractions and reported what she felt was leaking water. The signs continued for the next half ³³⁴ hour, during which a fetal monitor reading showed “big” variable decelerations in the fetal heartbeat, followed by a positive test at 10:45 p.m. showing that the membranes had ruptured. Dr. Stokes opined that the standard of care at that point required a “stat” cesarean section, as the variable decelerations showed that the fetus was in distress, and that “stat” means urgent, again, no more than 10 minutes.

Giving time for Dr. Alger to prep for surgery, a stat cesarean section should have been performed and delivery completed by 11:05 p.m. Instead, Darryl was not delivered until 11:42 p.m. Dr. Stokes explained that, given the cord prolapse, with each contraction, the blood flow through the cord stopped, reducing the blood flow to the fetus, and thus depriving the fetus of oxygen. Dr. Stokes opined that, if the stat cesarean section had been called at 10:45 p.m., ie., meaning that Darryl would have been delivered by 11:05 p.m., Darryl would not have suffered hypoxic brain injury.

He stated that Darryl’s blood gases showed an abnormal pH (a measure of acidity in the blood), “indicative of a baby that was significantly depressed and stayed that way for a long period of time.” He explained, “When I say ‘long,’ I mean half an hour”; the blood gases also showed a significant base deficit. Dr. Stokes opined that Darryl’s condition at birth in this case was “completely abnormal for premies.” A premature infant delivered at 26 weeks would not have abnormal acid and base counts as in this case and would not have an Apgar score of 1 at one minute. Dr. Stokes further opined that a baby delivered at 26 weeks has about a 20% chance of suffering from neurological damage. On the issue of breach of the standard of care and causation of injury, Darryl’s