Weimer v. Hetrick

W. ALBERT MENCHINE, Judge, Specially Assigned. Appellees, Jody Ann Hetrick and Michael Cary Hetrick, filed a malpractice claim, pursuant to the Health Care Malpractice Claims Act (Courts and Judicial Proceedings Article, Subtitle 2A, 1984 Repl.Vol.) with the Health Claims Arbitration Office, in August 1982, alleging that Appellant, Dr. Stanley R. Weimer; Dr. Thomas R. Moeser; Dr. John S. Harris; 1 St. Agnes Hospital; 2 and the Anne Arundel Hospital were negligent in the care and treatment of Jason ⁵³⁹ Michael Hetrick, their son, who was delivered by caesarean section but who died hours after birth. The Health Claims Arbitration panel found no liability on the part of the Health Care Providers against whom the claim was litigated, but found liability on the part of Dr. Moeser, although he had settled the claim against him prior to hearing. Appellees rejected the panel decision pursuant to the judicial review provisions of the Act (Cts. & Jud.Proc.

Art. § 3-2A-06) and filed suit in the Circuit Court for Anne Arundel County against Dr. Weimer, Dr. Harris and Anne Arundel General Hospital. Dr. Harris settled with Appellees prior to trial in the Circuit Court for Anne Arundel County. Motion for directed verdict as to Anne Arundel General Hospital was granted at the end of evidence offered by the plaintiffs. The case then proceeded against Dr. Weimer alone, going to the jury under Counts I and III.

The mother had been admitted to Anne Arundel County Hospital on the service of Dr. Thomas Moeser on September 2, 1978 with a diagnosis of “severe gastroenteritis versus choleeystitus.” Her condition worsened and on September 9, 1978 she underwent exploratory laparotomy. It was noted that the gall bladder was completely normal but she had a great deal of edema of the liver and it was felt that she was a very early severe pre-eclamptic. The incision was closed without cholecystectomy being done. A very stormy course followed the exploratory operation.

Within twelve hours, it was felt that the severe pre-eclampsia could not be controlled and that termination of the pregnancy was necessary. The mother agreed to delivery by caesarian section, knowing that the 32-week gestation infant might have only a poor chance of survival. A 3 lb., 6 oz. boy was delivered by the operative procedure performed by Drs. Moeser and Harris.

Dr. Weimer occupied no role in either operative procedure but received the infant in the operating room after the delivery at 6:43 p.m. Dr. Kenneth L. Harkavy, a physician and neonatologist, testified that Dr. Weimer’s medical services for the infant were not in keeping with the required standard of care: (1) inadequate resuscitative efforts; (2) improper use and dos ⁵⁴⁰ age of bicarbonate; (3) premature removal of the umbilical venous line that was the only route for administration of medicines and nourishment—removal should not have occurred prior to starting an I.V.; (4) flushing the umbilical venous line with an excessive concentration of Heparen; (5) failure to observe the baby’s progressive fatigue from his trying to keep his lungs expanded; (6) failure to monitor blood sugar of the infant. Dr. Harkavy conceded that many of the symptoms shown by history in the hospital record on original admission were classic findings for eclampsia. He concluded, however, “Given the condition of the baby at birth, are you able to say with reasonable medical probability whether this baby would have survived if the resuscitation had not been inadequate?” Answer: “I can tell you that at the birth weight and with an Apgar of two that that baby’s survival chances would still be considered good.

In fact, the likelihood of survival still that we’re talking about is 80 to 90%. Perhaps somewhat pre—slightly prejudiced from the average survival rate but not significant.” The conclusion expressed after autopsy was as follows: “The cause of intrauterine anoxia in this case is uncertain when the clinical events are examined. Some authors have indicated that during eclampsia, blood flow to the placenta is decreased which would, of course, lead to a decreased oxygen supply to the fetus. Over a long period of time, toxemia may lead to growth retardation and decreased fetal size.

Another possibility in this case is that anoxia to the fetus occurred at the time of surgery from anesthesia administration. Of course, the mother underwent both cholecystectomy and caesarean section presenting two periods during which intrauterine anoxia might have occurred. There is no history supportive for the other main causes of fetal anoxia as abruptio placenta, placenta previa, maternal shock, placental infarct, or cord interruption. Thus, it would seem most probable that a combination of eclampsia plus general anesthesia led to fetal anoxia and the pathologic changes observed. ⁵⁴¹ Although fetal mortality in the presence of eclampsia has greatly improved, it still remains a substantial cause of fetal death.

This is frequently secondary to the necessity of premature delivery in these mothers.” Dr. Judith Gieske, a pediatrician, after tracing the course of the baby’s life from delivery to death, concluded that Dr. Weimer met the standard expected of him and did nothing that caused or contributed to the baby’s death. In Count I, Jody Ann Hetrick had sued as personal representative of the estate of Jason Michael Hetrick, deceased, pursuant to the provisions of Annotated Code of Maryland, Courts and Judicial Proceedings Article, Subtitle 4 Practice, in General, § 6-401(a) Survival of Actions 3 (1984 Repl.Vol.) and Estates and Trusts Article, Subtitle 4 Powers of Personal Representative § 7-401(x) General Powers (1974). 4 In Count III, Jody Ann Hetrick and Michael Cary Hetrick, mother and father, respectively, of Jason Michael Hetrick, deceased, had sued pursuant to the provisions of Courts and Judicial Proceedings Article, Subtitle 9 Wrongful death § 3-902(a) and § 3-904. 5 The jury returned verdicts in favor of the defendant, Dr. Weimer, under both counts. The Appellees appealed to the Court of Special Appeals. That court, not distinguishing between the respective rights ⁵⁴² of the litigants under Count I and under Count III, affirmed in part and reversed in part.

(Hetrick v. Weimer, 67 Md.App. 522 , 508 A.2d 522 (1986)), holding that the trial court erred in instructing the jury that the plaintiff was required to prove by a preponderance of the evidence that death of the decedent was caused by the negligence of the defendant. The court remanded the case for a new trial. In the decision below, the court said: “Thus, the instruction that the plaintiffs had to prove, by a preponderance of the evidence, that the physician’s negligence was the primary or most probable cause of the patient’s death imposed an improper burden upon them. The theory of appellants’ case was not that Dr. Weimer caused their son’s death; it was that Dr. Weimer’s failure to do what was reasonable, proper, necessary and appropriate to resuscitate Jason deprived the child of a substantial possibility of survival” (footnote omitted). 67 Md.App. at 541 , 508 A.2d at 531 .

The trial court’s charge on negligence and causation was as follows: “To hold Dr. Weimer liable, the plaintiffs have to show that his conduct was clearly not recognizable as medically acceptable. And no pediatrician is chargeable with the results of his efforts if he has applied the degree of skill ordinarily required to be expected of a pediatrician in the performance of the services required. And you have to keep in mind the circumstances as they existed at the time of the treatment and the nature and complexity of the medical problems facing the pediatrician at that time. If you find that Dr. Weimer, under those circumstances as they then existed rather than by hindsight, exercised that reasonable degree of care and skill, then you must find in favor of the doctor.

Now plaintiffs need only prove the most likely cause of the baby’s death in addition to everything else that I’ve said. The plaintiffs are not required to negate or exclude every other possible cause. However, if there are two or more causes, either of which could have resulted in the baby’s death, one of which for which the pediatrician is ⁵⁴³ responsible, and the others for which he is not, then the plaintiffs have to prove by evidence more likely so than not that the acts for which the pediatrician is responsible in fact caused the baby’s death. Now there I’ve used that phrase by evidence more likely so than not.

Take the example in this case, and it is strictly an example, and I don’t mean to infer that these are the facts. Again, I’m only doing this to clarify what I’ve just said. You have to decide what the facts are. But if you should find that Dr. Weimer was responsible for the lack of oxygen and that was 50% of the cause of the death and if you feel that the prematurity was 50% of the cause of death, then that’s the standoff again.

We got two causes of action. There are two possible causes of death that are both equal. If that’s the case, the plaintiff hasn’t done what the law requires and you must find in favor of the doctor. The plaintiff has to show that the act for which the doctor is responsible for is better than 50%, 51%.

That’s better.” The exception to that part of the court’s charge was as follows: “Your Honor, in the instructions you failed to give the, or at least I didn’t hear it, the instruction on Thomas v. Corso to the effect that all that the plaintiff need prove is that the actions of Dr. Weimer took away a substantial possibility that this baby would have survived with appropriate resuscitation. And, thirdly, Your Honor, I object to giving the instruction that Mr. Cowdrey asked for that said that and with your example where you said 50% prematurity, 50% lack of appropriate resuscitation, I don’t think that that is the burden that’s upon the plaintiff. I think all that the burden—all that the plaintiff need prove is that failure to properly resuscitate took away a substantial possibility that this child would have survived. So in this specific case, as in Thomas v. Corso, even though we have offered evidence as to probability, we need only prove substantial possibility which was less than 50%.

Thank you, Your Honor.” ⁵⁴⁴ The intermediate court had grounded its holding upon language used by the late Judge Sobeloff in Hicks v. United States, 368 F.2d 626, 632 (4th Cir.1966) that had been quoted by Judge Barnes in our decision in Thomas v. Corso, 265 Md. 84, 102 , 288 A.2d 379, 389-90 (1972). “When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.” We granted certiorari to consider the question of public importance.

I The Appeal as it Relates to Count I (Survivorship action by the personal representative under Cts. & Jud.Proc.Art. § 6-401 and Est. & Trusts Art. § 7-401(x)) No contention was made in the circuit court that recovery of damages for the loss of a substantial chance of survival was permissible under that count of the declaration. The record shows that while the taking of testimony in the circuit court was suspended awaiting arrival of a witness, the trial judge and plaintiffs’ counsel discussed the court’s instructions to be given in the survivorship action. The following colloquy appears in the record: “COURT: What damage do you have for the Estate? MS.

JAKUBOWSKI: Pain— MR. DUGAN: Pain and suffering— MS. JAKUBOWSKI: Pain and suffering of the baby. ⁵⁴⁵ COURT: Oh, as to the individual but as to other than the child itself, there’s no evidence of any medical expenses— MR. DUGAN: Right.

I didn’t put any bills in or any of that. MS. JAKUBOWSKI: Right. COURT: All right, so there’s no misunderstanding as to that.

MR. DUGAN: It’s just pain and suffering. COURT: As to the child. MR.

DUGAN: As to the child.” Pursuant to that discussion, the court in its charge to the jury, said: “One [verdict] is for the Estate. Now that is Mrs. Hetrick, the mother, but she’s not here as the mother in this first claim. She’s here as representative of the Estate. In other words, she’s standing in the baby’s shoes, so to speak.

It could be anyone. The personal representative is what she’s commonly referred to. She happens to be the mother. But this first dollar award is to compensate for the conscious pain and suffering of the baby.

Just like anyone that may have been injured in an automobile accident. We happen to be dealing with a death here so, obviously, we don’t have the party in front of us. That is where the personal representative, which happens to be Mrs. Hetrick, comes in. So we’re talking about the conscious pain and suffering of the baby.

Not the mother. Not the father. Only the baby and for whatever period of time it may have survived.” No exception was taken to the charge as given by the court under Count I. Accordingly, the question whether Maryland recognizes the loss of a substantial chance of survival as a measure of damages or as a separate tort was not raised or decided under this count of the declaration. ⁵⁴⁶ We shall not consider the question under that Count. 6 Md. Rule 885. II The Appeal as it Relates to Count III (Action for wrongful death under Cts. & Jud.Proc.Art. §§ 3-902(a) and 3-904(a)) (a) Burden of proof under such actions The general rule in negligence cases is thus stated in Prosser & Keeton on Torts, § 38, at 239 (5th ed. 1984): “The burden of proof of the defendant’s negligence is quite uniformly upon the plaintiff, since he is asking the court for relief, and must lose if his case does not outweigh that of the defendant’s” (footnote omitted).

In 2 S.M. Speiser, Recovery for Wrongful Death § 12.1, at 288 (2d ed. 1975), it is said: “The rule that the person who pleads the existence of a fact has the burden of proving such fact is applicable to wrongful death actions, and thus the statutory plaintiff has the same burden of proof that the decedent would have had if he had lived” (footnote omitted). In F.B. Tiffany, Death by Wrongful Act § 189, at 426 (2d ed. 1913), the author also makes clear that this rule of law has application to cases involving negligence causing death: “As in other actions, the burden of proof is upon the plaintiff to establish his case, including the fact that the death was caused by the wrongful act or neglect of the defendant, by a preponderance of evidence” (footnote omitted). ⁵⁴⁷ In 30 Am.Jur.2d Evidence § 1121, at 288-89, the rule is thus stated: “The evidence must not leave the causal connection a matter of conjecture; it must be something more than consistent with plaintiff’s theory as to how the accident occurred. Where the proof of causal connection is equally balanced, or the facts are as consistent with one theory as with another, plaintiff has not met the burden which the law casts upon him. If the evidence shows that an injury may have resulted from one of several causes, but only one of the causes can be attributed to the defendant’s negligence, the plaintiff must fail” (footnotes omitted).

That Maryland courts long have recognized and applied this rule of law is beyond cavil. In Brady v. Consol Gas Co., 85 Md. 637, 641 , 37 A. 263 (1897), it was said: “All the cases agree that to constitute a good cause of action, there should be stated and proved a right on the part of the plaintiff, and a duty on the part of the defendant in respect to that right, and a breach of that duty by the defendant, whereby the alleged injury was produced. Between the negligence and the injury there must be the relation of cause and effect. Maenner v. Carroll, 46 Md. 212 ; W.U. Tel.

Co. v. State, use of Nelson, 82 Md. 310 ; Holly v. Boston Gas Light Company, 8 Gray, 123 ; Trainor’s case, 33 Md. 554 , 33 A. 763 . Having these well-established legal principles in view, we now proceed to a consideration of the facts in proof, bearing in mind that the onus is on the plaintiff to show affirmatively all the elements of the right to recover. It was necessary for the plaintiff in this case to prove (1) the death of Miss Brady; (2), the negligence of the defendant, and (3), that such negligence was the cause of Miss Brady’s death” (emphasis in the original). 85 Md. at 641-42 , 37 A. at 264 . The applicability of the above Maryland rule to cases of negligence causing death grounded upon medical malprac ⁵⁴⁸ tice is equally well settled.

In State, Use of Janney v. Housekeeper, 70 Md. 162 , 16 A. 382 (1889), we said: “It was the duty of the professional men to exercise ordinary care and skill, and this being a duty imposed by law, it will be presumed that the operation was carefully and skillfully performed in the absence of proof to the contrary. As all persons are presumed to have duly performed any duty imposed on them, negligence cannot be presumed, but must be affirmatively proved. Best on Presump. 68; R.R. Co. v. Chappell, 21 Fla. 175 . This principle is especially applicable in suits against physicians and surgeons for injuries sustained by reason of alleged unskillful and careless treatment.

The burden of proof is on the plaintiff to show a want of proper knowledge and skill. Leighton v. Sargent, 31 N.H. 119 ; Baird v. Morford, 29 la. 531. The court below committed no error in determining that it was incumbent on the plaintiff to prove affirmatively that the operation was performed without the consent of the patient, and also that her death was caused by unskillful and careless treatment of the physicians. Nor did the court commit any error in granting the defendants’ second prayer, which enunciates the proposition that if death was caused by tubercular meningitis or other disease not produced by the operation, the defendants are not liable.” 70 Md. at 171 , 16 A. at 384 .

The continuing applicability of the rule