Zeller v. Greater Baltimore Medical Center

ROSALYN B. BELL, Judge. Diane Zeller was kidnapped at gunpoint and raped. The assailant was later arrested, brought to trial and convicted. Immediately after the incident, she was taken by the police to the Rape Crisis Center located at the Greater ⁷⁸ Baltimore Medical Center (GBMC).

Zeller was examined by Julio C. Novoa, M.D., who administered medication for the prevention of venereal disease. He also gave her a prescription for Estrace, a drug used to “prevent” pregnancy. Zeller had the prescription filled and stated that she took the Estrace as directed. Sometime thereafter she discovered she was pregnant.

Zeller later testified that her strong religious beliefs precluded her from having an abortion, and moreover she saw no reason why her child should pay for its criminal inception. She would not “feel right about killing the child.” She further asserted she could not give up the biracial child for adoption because she feared that the child would be adversely affected knowing her mother had rejected her and her father was a criminal. After the child was born, Zeller left her job to care for the child. She incurred and will continue to incur expenses in raising her daughter.

A complaint was filed by Zeller and her daughter under the Maryland Health Claims Arbitration Act, codified at Md.Cts. & Jud.Proc.Code Ann., §§ 3-2A-01 et seq. (1984 Repl.Vol., 1985 Cum.Supp.). The suit filed against Novoa and GBMC alleged both wrongful birth and wrongful life causes of action arising from violations of accepted and prevailing standards of gynecological care. Novoa was alleged to be practicing medicine at the time on behalf of GBMC, and GBMC was charged with vicarious liability for his negligence.

A three member Arbitration Panel found liability as to Novoa only and awarded damages in the amount of $250,-000 in favor of Zeller individually. The panel chairman sustained a demurrer without leave to amend the individual claim of wrongful life brought in the child’s name. No finding was made as to GBMC’s vicarious liability. Both Novoa and Zeller filed Notices of Rejection of the panel’s decision.

Md.Cts. & Jud.Proc.Code Ann., § 3-2A-06(a), supra. Zeller rejected the award and appealed to the ⁷⁹ Circuit Court for Baltimore County contesting the amount. An appeal was also brought on behalf of her daughter challenging the chairman’s decision regarding her wrongful life cause of action. Novoa also appealed from the adverse finding of the Arbitration Panel.

The trial judge granted demurrers barring the child’s claim for wrongful life. 1 GBMC filed a Motion Raising Preliminary Objection challenging the court’s jurisdiction on the ground that Zeller’s Notice of Rejection did not address the absence of a finding with respect to GBMC’s liability. The judge denied that motion. At the conclusion of the trial on the merits, GBMC moved for a directed verdict, premised on an insufficiency of evidence demonstrating an agency relationship between itself and Novoa. The court granted that motion.

The jury returned a unanimous verdict in favor of Novoa. Zeller has appealed raising the following issues for our consideration: I. “Whether the lower court erred in failing to instruct the jury on a cause of action under the doctrine of informed consent.” II. “Whether the lower court erred in failing to grant Plaintiff’s requested instruction No. 2A, that comparable treatment by several local hospitals did not create the appropriate standard of care by which to judge the Defendant’s conduct.” III. “Whether the lower court erred in failing to grant Plaintiff’s requested instruction No. 5, that the Defendant could be subject to liability if he was found to have prescribed Estrace as part of a personal experimental or testing program which was not conducted in accordance with prevailing standards of care regarding such protocols.” ⁸⁰ IV. “Whether the lower court erred in failing to grant Plaintiffs requested instruction No. 7A, that the Defendant’s contention, that no prevailing standards of care existed in 1981 regarding the prescription of postcoital drugs for rape victims, was an affirmative defense, which required the Defendant to meet the burden of proof thereon by the preponderance of the evidence.” V. “Whether the lower court erred in instructing the jury that, in mitigation of the Plaintiff’s damages, it could consider the emotional and societal benefits conferred upon her by the birth of her child.” VI. “Whether the trial court erred in failing to sequester the jury during the pendency of its deliberation.” Zeller also contends that the court erred in directing a verdict in favor of GBMC. GBMC has cross-appealed contending that “[t]he trial court erred in finding jurisdiction over Greater Baltimore Medical Center as to Count I of the Declaration because cross-appellees failed to reject or to seek to nullify the award in favor of G.B.M.C.” In light of our holding affirming the judgment entered in favor of Novoa, it is unnecessary for us to address either of the issues regarding GBMC’s alleged vicarious liability. JURY INSTRUCTIONS A litigant is entitled to have his or her theory of the case presented to the jury if that theory is a correct exposition of the law and if there is evidence in the case which supports that theory.

The Sergeant Co. v. Pickett, 285 Md. 186 , 401 A.2d 651 (1979), quoting Levine v. Rendler, 272 Md. 1, 13 , 320 A.2d 258 (1974). In advancement of that proposition, Rule 2-520(c) provides: “How Given.—The court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instruction of its own, or by combining any of these methods. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.” ⁸¹ Against this background, we will discuss each of appellant’s requested instructions, and the propriety of the court’s denial of those requests. Informed Consent Appellant requested an instruction on the law of informed consent which the court declined.

We hold the court did not err in refusing that request for two reasons. —Failure to Plead Issue- Appellant asserts that since the issue of informed consent was raised by the evidence, the failure to submit the question for jury deliberation was error. Appellee Novoa retorts that not only was the evidence adduced insufficient to sustain the instruction, but that “[i]t is axiomatic that before a plaintiff may receive an instruction to the jury based upon the doctrine of informed consent, she must first properly plead ... such a case.” Reviewing appellant’s Declaration and Answers to Interrogatories, appellee Novoa avers these documents demonstrate appellant’s failure to plead the issue. Appellant responds to this charge by claiming that appellee Novoa has waived any right to contend that the issue of informed consent was not raised “by virtue of his proceeding to trial on the merits of that issue and failing to object to any of the evidence offered to prove it.” In support of her argument, she refers us to M.L.E. “Pleading,” § 145; Wathen v. Pearce, 175 Md. 651 , 3 A.2d 486 (1939); Richardson v. Anderson, 109 Md. 641 (1909); and Straus v. Young, 36 Md. 246 (1872). These authorities are of no assistance to appellant.

Through her references, appellant seeks to invoke the procedural device of a “variance.” A variance is a discrepancy between the allegations of the pleadings and the proof adduced. Black’s Law Dictionary 1392 (5th ed. 1979). This case does not present a variance. What is presented instead is appellant’s complete failure to plead a specific cause of action.

The rendering of medical services ⁸² absent informed consent, if pled properly, constitutes a separate and new count of negligence. See Sard v. Hardy, 281 Md. 432 , 379 A.2d 1014 (1977). The law is settled that “[a] party cannot allege one cause of action and introduce evidence to prove another and different one.” McTavish v. Carroll, 17 Md. 1 (1861). The purpose behind this principle is clear.

A defendant must have notice of the allegations lodged so he or she can use his or her best efforts to disprove the charges. The doctrine of variance has been subsumed by the adoption of liberal amendment rules which permit a party to amend his or her declaration to conform to the evidence. In Staub v. Staub, 31 Md.App. 478 , 356 A.2d 609 , cert. denied, 278 Md. 735 (1976), now Chief Judge Gilbert writing for this Court reaffirmed that Maryland has adopted a liberal view toward amendments. Quoting 3 Poe’s Pleading and Practice § 184 (6th ed.

H.M. Sachs, Jr. 1975), Staub, supra noted: “ ‘Amendments now liberally allowed. —These provisions [the Maryland Rules] are so clear as to call for but little comment. They indicate great liberality in the allowance of amendments, in order to prevent the substantial justice of a cause from being defeated by formal slips or slight variances, and under their operation the practical injustice which formerly disfigured the administration of the law, in consequence of the enforcement of strict technical rules of pleading, is greatly diminished.’ ” (Brackets in original.) Id. at 482 , 356 A.2d 609 . Further, “cases may, by amendment, be changed from one form of action to another____” 3 Poe’s Pleading and Practice § 185, supra. Appellant did not attempt to amend her pleadings to include a negligence count based on informed consent, ⁸³ although the rules permit a request to amend until the jury retires to deliberate.

Rule 2-341(b). 2 Thus, since the requested instruction on informed consent was not based upon any theory set out in the pleadings, and no amendment was requested, the court properly denied the instruction. See Smith Co. v. Smick, 119 Md. 279 , 86 A. 500 (1913). —Elements of Informed Consent- Even if we were to hold that appellant properly pled in her Declaration the failure to obtain her informed consent, the court did not err in refusing to give the instruction. As we stated, a party is entitled to have his or her theory submitted to the jury, but only if that theory is a correct statement of the law. The Sergeant Co. v. Pickett, supra.

In the case sub judice, appellant’s requested instruction was not an accurate exposition of the law of informed consent. That instruction provided: “Members of the jury, you are instructed as a matter of law that the standards of medical, gynecological or hospital care that existed in 1981 and indeed today requires [sic] any physician who is attempting to use a new or untested drug or a new method of treatment not yet recognized as a standard of care of his or her particular specialty, must first obtain informed consent from the patient prior to utilizing such drug and/or such treatment. Should you find from the evidence in this case that [appellee] Novoa failed to obtain informed consent from [appellant], then I instruct you that such failure was a violation of the accepted standards of care and that such violation is the equivalent of negligence.” Appellant’s instruction is defective because it assumes the existence of several crucial facts which the jury must first determine before it can conclude negligence on the part of appellee Novoa. ⁸⁴ In Sard v. Hardy, supra, the Court of Appeals set out the doctrine of informed consent, recognizing that except in emergency situations, “the doctrine of informed consent imposes on a physician, before he subjects his patient to medical treatment, the duty to explain the procedure to the patient and to warn him of any material risks or dangers inherent in or collateral to the therapy, so as to enable the patient to make an intelligent and informed choice about whether or not to undergo such treatment.” (Citation omitted). Id. 281 Md. at 439 , 379 A.2d 1014 .

The Court continued: “[T]he scope of the physician’s duty to inform is to be measured by the materiality of the information to the decision of the patient. A material risk is one which a physician knows, or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to submit to a particular medical treatment or procedure.” (Citations omitted). Id. at 444 , 379 A.2d 1014 . To sustain a cause of action for this type of negligence, the fact finder must determine several facts to be in existence: that there was no emergency need for the treatment; that the physician did not inform the patient of the material risks of the treatment; that a reasonable person in the patient’s position would not have consented had there been a disclosure of the material risks; and finally that the patient’s injuries resulted from a violation of the standard of care.

Sard v. Hardy, supra. The requested instruction did not instruct the jury fully. Instead, the instruction set out the standard of care and then directed the jury to find for appellant if the evidence showed appellee Novoa did not get appellant’s consent. Contra Thimatariga v. Chambers, 46 Md.App. 260 , 416 A.2d 1326 , cert. denied, 288 Md. 744 (1980).

(If the jury finds that: injuries resulted from a violation of the standard of care; there was no emergency need for surgery; the doctor did not inform the patient of the risks of surgery; ⁸⁵ and a reasonable person would not have consented to the surgery if informed of the risks, the jury may find for the patient). To state the law correctly, the instruction