Santoni v. Moodie

• Decision Date: 06 December 1982
• Docket Number: No. 1187,1187
• Citation: 452 A.2d 1223,53 Md.App. 129
• Parties: Antoinette SANTONI, Personal Representative of the Estate of Mario Santoni v. Allan H. MOODIE and Meyer W. Jacobson.
• Court: Court of Special Appeals of Maryland

Page 129

53 Md.App. 129

452 A.2d 1223

Antoinette SANTONI, Personal Representative of the Estate of Mario Santoni v. Allan H. MOODIE and Meyer W. Jacobson.

No. 1187.

Court of Special Appeals of Maryland.

Dec. 6, 1982.

Submitted On Remand to MOYLAN, MASON and COUCH, ^* JJ.

MOYLAN, Judge.

This case comes to us for the second time. The appellant, Antoinette Santoni, is the widow of Mario Santoni and the personal representative of his estate. She brought suit under the wrongful death statute in the Superior Court of Baltimore City against the appellees, physicians with the Baltimore City Health Department, for her husband's death. Following extensive testimony and evidence, the trial court submitted the case to the jury on the issues of the appellees' negligence and Mr. Santoni's contributory negligence. The jury found the appellees were negligent and that their negligence caused or contributed to Mr. Santoni's death, but the jury also found that Mr. Santoni himself was contributorily negligent. Recovery thereby was effectively denied the appellant. On appeal to our Court, we held, in Santoni v. Schaerf, et al., 48 Md.App. 498, 428 A.2d 94 (1981), that the evidence was not sufficient to support a legally permissible inference that Mr. Santoni was contributorily negligent and that the issue should not have been submitted to the jury. We reversed the case and remanded it for a retrial on the issue of damages.

The appellees did not challenge the jury finding of primary negligence on their part and that is now the law of the case. The appellees did, however, raise two contentions on cross-appeal: (1) that they were entitled to governmental immunity, and (2) that the trial court erred in admitting evidence of twelve other deaths of persons who had received isoniazid (INH) therapy from the Baltimore City Health Department. We decided both of those issues against the appellees. Because we were reversing the case on the basis of the appellant's first contention, it was unnecessary for us to deal with the appellant's remaining four contentions.

The Court of Appeals thereafter granted a writ of certiorari and reversed our judgment, holding that "there was evidence, if believed, from which the jury could infer that Santoni failed to heed instructions and himself was guilty of contributory negligence." Moodie and Jacobson v. Santoni, 292 Md. 582, 441 A.2d 323 (1982). The Court remanded the case to us for the consideration of issues raised by the appellant, Mrs. Santoni, which it was unnecessary for us to reach in view of our disposition of the case.

The appellant's remaining contentions are:

(1) That the trial court committed reversible error in refusing to admit into evidence a certain conversation between the appellant and her husband;

(2) That the trial court committed reversible error in admitting into evidence a "Danger Signs" poster;

(3) That the trial court erred in its instructions on contributory negligence; and

(4) That the jury's verdict was inconsistent and irreconcilable.

The limited nature of the remand was made very explicit by the Court of Appeals in directing that the "case [be] remanded to that Court for consideration of undecided issues." The contentions raised by the appellees on cross-appeal, which we decided against the appellees, were not addressed by the Court of Appeals, and our holding in that regard was, therefore, not disturbed. The opinion for the Court of Appeals concluded, at 292 Md. 591, 441 A.2d 323:

"Because of the theory upon which the Court of Special Appeals determined Mrs. Santoni's appeal, it was not obliged to address certain of her contentions. Therefore, those questions must be considered on the remand."

The facts of this case were fully set out by us in our earlier opinion. We will, however, restate them briefly. Mr. Santoni was an Italian immigrant, who came to this country in 1955. He had little formal education, spoke broken English, and had great difficulty reading the English language. In January, 1972, he obtained employment as a custodian with the City of Baltimore. As a condition of his employment, Mr. Santoni was required to undergo a physical examination, which included a tuberculin skin test and chest X-ray. Although the chest X-ray was clear, Mr. Santoni's T.B. skin test proved positive, indicating that he had been exposed to tubercle bacilli at some time in his life and was at a greater risk of developing the disease. As a result, on January 20, 1972, Mr. Santoni was enrolled in a tuberculosis prevention program sponsored by the Baltimore City Health Department. The program involved Mr. Santoni's taking the drug isoniazid (INH) daily in pill form. This drug has been used widely in the treatment and prevention of tuberculosis. The drug was dispensed to Mr. Santoni on a monthly basis by the Baltimore City Health Department at the Eastern Chest Clinic. Mr. Santoni was to receive the drug for one year.

The tuberculosis prevention program in which Mr. Santoni was a participant was part of a special surveillance program. Sometime in 1970, after the deaths of two participants in a tuberculosis prevention program in Washington, D.C., the United States Public Health Service became concerned that the ingestion of INH might be associated with liver disease, particularly hepatitis. As a result, the following year the Public Health Service enlisted the aid of local health departments in conducting a special surveillance program which would monitor all recipients of the drug. Baltimore City, which had one of the highest tuberculosis rates in the country, agreed to participate in the special surveillance to expand its already existing program.

The protocol for the program promulgated by the U.S. Public Health Service called for dispensing the drug to each participant on a monthly basis. In this way, the patient would be required to return to the clinic each month, at which time he would be questioned about any adverse reactions. The protocol provided that the patient would be "ask[ed] specifically about jaundice, dark urine, sustained loss of appetite, marked fatigue and prolonged nausea or vomiting." Where there was any adverse reaction, the drug would be discontinued immediately. Report cards on each patient would be sent to the Public Health Service each month. The appellee Dr. Allan H. Moodie was the administrative head of the Tuberculosis Division of the Baltimore City Health Department. Among other things, he arranged the funding and staff for the isoniazid program. Dr. Meyer W. Jacobson was the Clinical Director of the Baltimore City tuberculosis program.

Mr. Santoni faithfully went to the clinic each month from January through June, 1972, to receive his medication. He mistakenly believed that in order to work for the City of Baltimore he had to take the drug. Soon after he began taking the pills, he started to experience fatigue and decreased appetite. Then he noted fullness, abdominal discomfort, and increased flatulence. Then he could not tolerate fatty foods, his stools became lighter, his urine became darker, and he began to feel very tired. In mid-June, his wife became concerned about his condition and consulted her doctor, who prescribed coantigel and librium for Mr. Santoni. When Mr. Santoni's condition worsened, Mrs. Santoni called Dr. Joseph Notarangelo at Mercy Hospital. Mr. Santoni was admitted to Mercy on June 22. At the time of his admission, he complained of excessive gas and indigestion. Although he gave a fairly detailed history of his illness, he did not know that he was jaundiced. On the basis of Mr. Santoni's complaints, a preliminary diagnosis of a peptic ulcer was made. Ultimately, however, he was diagnosed as suffering from hepatitis. Despite excellent hospital treatment and no complications, Mr. Santoni died on July 3, 1972, of hepatitis, caused by a toxic reaction to isoniazid.

Under the circumstances and with the unchallenged finding by the jury that Mr. Santoni's death was attributable, at least in part, to the primary negligence of the appellees, the issue of Mr. Santoni's contributory negligence becomes all important. Reversing our earlier holding that there was no legally sufficient evidence of contributory negligence to permit the jury to consider the issue, the Court of Appeals held squarely that there was a legitimate jury question in this regard. We turn now to the facts that may have pertinence on that issue of contributory negligence.

It was the intent of the special surveillance program that each participant be advised at the time of his initial clinic interview that isoniazid may have a side effect. Each participant was to be advised by a nurse as to what the signs and symptoms of that side effect are. At the time of the monthly visits, the patient was to be examined verbally as to whether he was suffering from any of those symptoms. At first, only public health nurses were permitted to interview the patients. As the program expanded, however, health aides and clerical help were authorized to conduct the follow-up interviews. There was no direct evidence at trial that Mario Santoni was ever advised or knew of the risks of taking INH or that he was properly questioned about adverse signs and symptoms at the time of his monthly clinic visits. Whatever evidence there was on this issue was totally circumstantial.

The appellant, Mrs. Santoni, introduced into evidence the computer cards which were sent to the Public Health Service after each of Mr. Santoni's visits. The face of the cards had a line for noting the number of pills taken during the preceding month. It also contained a list of reasons for not issuing isoniazid with space for check marks next to those reasons and a space for further specification. The reasons listed included "Adverse reaction," "Suspected hepatitis," and "Other illness." The backs of the cards had space for listing any medication taken by Mr. Santoni during the preceding month and for...