Johns Hopkins Hospital v. Lehninger

• Citation: 429 A.2d 538,48 Md.App. 549
• Decision Date: 06 May 1981
• Docket Number: No. 1048,1048
• Parties: The JOHNS HOPKINS HOSPITAL v. James W. LEHNINGER.
• Court: Court of Special Appeals of Maryland

Page 549

48 Md.App. 549

429 A.2d 538

The JOHNS HOPKINS HOSPITAL v. James W. LEHNINGER.

No. 1048.

Court of Special Appeals of Maryland.

May 6, 1981.

Angus R. Everton, and John F. King, Baltimore, with whom were Anderson, Coe & King, Baltimore, on the brief, for appellant.

Marvin Ellin, Baltimore, with whom were Donald F. Oakley, Ellin & Baker, Baltimore, on the brief, for appellee.

Argued before GILBERT, C. J., and MELVIN and COUCH, JJ.

COUCH, Judge.

In 1979 James W. Lehninger sued The Johns Hopkins Hospital (the Hospital) alleging that he suffered a serious disability because of negligent acts committed by the Hospital's agents in 1971 and 1973.

The Hospital answered the declaration by denying the alleged wrongs, and invoking the applicable statute of limitations.

At trial the court granted a directed verdict in favor of the Hospital as to the running of the statute of limitations. Issues were submitted to the jury, however, concerning whether the Hospital was negligent and whether this negligence estopped the Hospital from raising the defense of limitations. The jury answered these issues in Lehninger's favor and awarded him two million dollars ($2,000,000.00).

On appeal the Hospital, appellant, presents three questions for our consideration:

I. Should the case have been submitted to arbitration, under the terms of the Health Care Malpractice Claims Act, Md. Cts. & Jud. Proc. Code Ann. §§ 3-2A-01, et seq., as a condition precedent to trial?

II. Did the trial court err in permitting consideration by the jury of whether the appellant should have been estopped from asserting the defense of limitations?

III. Was prejudicial error committed in permitting an economist to project the future earning capacity of Lehninger on the basis of flawed and speculative economic methodology?

For the reasons set forth in this opinion we hold that the case was properly heard in the trial court rather than in an arbitration proceeding. Nevertheless, we hold that the judgment of the trial court must be reversed, and the case remanded for dismissal without a new trial, because the trial court erred in permitting the jury to consider whether the appellant should have been estopped from asserting the defense of limitations.

Because our latter holding disposes of the case, we need not address the appellant's third question.

The Facts

In 1971 James W. Lehninger, appellee, attended the Johns Hopkins University as a third-year medical student. On January 10, 1971, while walking up a Pennsylvania ski slope, Lehninger slipped on ice and fell against his right hip. Because of the pain and discomfort of his hip, Lehninger returned to Baltimore.

The next day, January 11, 1971, Lehninger went to the Student Clinic of The Johns Hopkins Hospital. His medical history was recorded, and an x-ray was taken of the right hip. A physician-employee of the Hospital, Dr. Jacobs, then advised Lehninger that "the x-ray looked fine and there was no fracture." Lehninger learned that his injury was diagnosed as "just a bruise or a strain," requiring him to "take it easy for a couple of days." The clinic provided him with a cane, and the clinic's physician told Lehninger that he could place weight on the right leg.

Despite chronic severe pain, Lehninger resumed his student activities. On January 14, 1971, while walking to his car, Lehninger slipped on the icy pavement and again fell on his right hip. Unable to move himself, Lehninger was carried by friends to his apartment, and later taken by ambulance to The Johns Hopkins Hospital.

An x-ray taken at the Hospital's emergency room revealed a displaced fracture of the femoral neck of Lehninger's right hip. Immediate surgery was performed involving the reduction of the fracture and the insertion of metal hardware referred to as a Knoll's pin and a Ken nail. This procedure secured the fracture site, and required that the hardware remain in place in the hip for almost two years.

Following treatment and periodic x-rays of his hip, Lehninger completed medical school in June, 1972. He moved to California and began an internship. Lehninger returned to the Hospital on December 16, 1973. An additional x-ray was taken, and the metal hardware was removed on December 18, 1973. Dr. Robinson, Chief of the Hopkins' Department of Orthopedics, who performed the January 14, 1971 surgery assured Lehninger that the x-ray showed the hip to be free of any abnormality, and not requiring further orthopedic treatment. Lehninger was told that he could resume his usual activities after a brief recuperation.

Lehninger returned to California, continued his work as a resident physician, and eventually resumed a regimen of strenuous physical exercise. Soon his leg felt fine enough to permit him to run long distances and play tennis daily.

During the late summer of 1977, while playing tennis, Lehninger felt "something snap" in his leg. A chronic pain developed in his right hip, and after several days he visited Dr. Finerman, a Los Angeles orthopedist. In September of 1977, Lehninger was informed that he "had a serious disease ... call avascular necrosis."

Avascular necrosis is a condition of bone deterioration or bone death resulting from the disruption of the blood supply to certain areas of the skeletal system.

After returning to Baltimore, Lehninger again saw Dr. Robinson, who consulted another orthopedist, Dr. Hungerford. Having reviewed the x-ray made in December of 1973, Dr. Hungerford wrote on October 31, 1977 that Lehninger's condition was "suggestive of the possibility of avascular necrosis." Films dated October of 1977 showed Dr. Hungerford a "significant collapse" of certain segments of Lehninger's femur. During the next year Lehninger obtained his medical records from the Hospital, and consulted with physicians in Boston and Philadelphia.

On April 16, 1979, Lehninger filed suit against the Hospital alleging that the Hospital's agents:

(1) on January 11, 1971 negligently informed Lehninger that his hip was normal, having failed to diagnose his injury as an undisplaced fracture, and

(2) on or about December 24, 1973, negligently assured Lehninger that he would not develop a bone disease.

Trial commenced in the Baltimore City Court on May 27, 1980. Evidence at the trial revealed that the x-rays of Lehninger's initial injury, taken on January 11, 1971, were examined by Dr. DiSimone, a radiologist at the Hospital. In a report dated January 13, 1971 Dr. DiSimone interpreted these x-rays to be normal, and not showing a definite fracture. Thus, he confirmed the diagnosis given to James Lehninger by Dr. Jacobs.

Dr. DiSimone testified that competent radiologists, acting within their standard of care, would probably have interpreted the January 11th x-ray as showing a normal hip. Under cross-examination, however, the witness stated that soon after James Lehninger's second fall and injury, the January 13th report concerning the initial injury was amended. The amendment reflected the possibility of a "subtle impacted fracture of the neck of the right femur."

Testifying for the plaintiff, Dr. Schoedinger, an orthopedic surgeon, stated that the x-ray taken on January 11, 1971 showed clear evidence of a fracture. A pathologist, Dr. Combs, concurred in this opinion of the severity of the initial injury.

After the surgery of January 14, 1971 for the subsequent fracture James Lehninger learned from Dr. Robinson of the serious nature of the first fracture.

Dr. Robinson testified that on January 14, 1971 he discussed James Lehninger's prognosis with the patient's father, Dr. Albert Lehninger, a professor of biochemistry. Dr. Robinson had described the possible complications of the bone displacement injury, how such an injury could affect the femur's blood supply, and could cause avascular necrosis.

Albert Lehninger confirmed the substance of that conversation, but testified that the discussion occurred within two weeks after the operation, rather than immediately afterwards.

James Lehninger similarly testified that, on several occasions during the first year after his injury, he discussed with his doctors the possibility of medical complications, especially avascular necrosis. He received repeated assurances that he had not developed bone disease. Hospital doctors provided these assurances, based on their interpretation of x-rays taken periodically during 1971 and 1972.

James Lehninger did not learn until years later that a "liver scan" test conducted on June 8, 1971 produced what Dr. Robinson reported in September, 1971 as "very tenuous evidence of avascular necrosis in the right femoral head." This test was conducted during a medical examination of Lehninger for problems of weakness and low-blood sugar unrelated to the hip injury. Uncontradicted testimony indicated that the liver scan was not designed to diagnose avascular necrosis, and that the presence of metal hardware in Lehninger's hip could have affected the test's results. The correct diagnostic tool for avascular necrosis was stated to be x-rays.

On the basis of his interpretation of the x-ray dated December 17, 1973, Dr. Robinson reassured Lehninger that no evidence indicated avascular necrosis. In December of 1973 Lehninger was also informed that he probably would not develop the disease in the future, because, as he testified, "if I was going to get it I would have gotten it by then, so there was no need for any further x-rays."

Expert witnesses for Lehninger testified that the December 17, 1973 x-ray showed "an early change" indicative of avascular necrosis. The Hospital's witnesses stated their opinion that this x-ray did not disclose avascular necrosis.

Lehninger testified at the trial that following the 1977 manifestation of the extent of his injury, he suffered difficulty in walking long distances without the use of crutches. The injury impeded his mobility in hospital wards, and prevented his working in private practice, according to...