919 A.2d 1177 (Md. 2007), 75, Hall v. University of Maryland Medical System Corp.

Docket Nº:75.
Citation:919 A.2d 1177, 398 Md. 67
Party Name:Tina A. HALL, Guardian v. The UNIVERSITY OF MARYLAND MEDICAL SYSTEM CORPORATION.
Case Date:March 21, 2007
Court:Court of Appeals of Maryland
 
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Page 1177

919 A.2d 1177 (Md. 2007)

398 Md. 67

Tina A. HALL, Guardian

v.

The UNIVERSITY OF MARYLAND MEDICAL SYSTEM CORPORATION.

No. 75.

Court of Appeals of Maryland

March 21, 2007

Page 1178

Wayne M. Willoughby (Zev T. Gershon, M.D., J.D., GGershon, Willoughby, Getz & Smith, LLC, Owings Mills, on brief), for appellant.

J. Mark Coulson (Scott Haiber, Amy K. Eroh, Miles & Stockbridge, P.C., Baltimore, on brief), for appellee.

Argued before Bell, C. J. Raker, Wilner,[*] Cathell, Harrell, Battaglia and Greene, JJ.

OPINION

Bell, C. J.

[398 Md. 69] This is a medical malpractice action against the University of Maryland Medical Systems Corporation ("UMMS"), the appellee. It arises from the birth of Teonna Boyce, the appellant, 1 by emergency

Page 1179

cesarian section ("c-section") at the University of Maryland Hospital on November 12, 1992. UMMS is the parent corporation of the hospital. The appellant presents two issues:

[398 Md. 70] "1. Whether the court erred by excluding as hearsay certain entries in the Defendant's own medical records pertaining to the medical history of the minor child and her mother at the Defendant Hospital?

"2. Whether the court erred by excluding certain entries in the Defendant's own medical records pertaining to the medical history of the minor child and her mother at the Defendant Hospital on the basis they were not relevant to corroborating the testimony and rehabilitating the credibility of the minor child's mother?"

Underlying these issues is the factual dispute with respect to the appellee's culpability for the appellant's injuries and damages. The appellant contends that her mother sought treatment at UMMS and waited in the hospital, without treatment, for approximately five hours before the emergency c-section was performed. The appellee, on the other hand, maintains that the appellant's mother arrived at the hospital just prior to her emergency c-section. The trial court resolved the dispute, when ruling on a motion in limine filed by the appellee, by excluding from the appellant's medical records, created by the hospital, two entries tending to corroborate the appellant's contention that her mother was seen by someone at the hospital at approximately 2:00 a.m. on November 12, 1992. Thereafter, in a bifurcated trial, the jury returned a verdict in favor of UMMS on the is sue o f liability. The appellant noted this appeal to the Court of Special Appeals, but, prior to that court's consideration of the matter, we, on our own motion, issued a Writ of Certiorari. Hall v. UMMS, 383 Md. 211, 857 A.2d 1129 (2004).

Answering the first question in the affirmative, we shall hold that the trial court erred as a matter of law by excluding the two entries in the appellant's medical records on the grounds that they were hearsay. The entries met the requirements of the business records exception to the hearsay rule, and they were pathologically germane to the diagnosis or treatment of Teonna Boyce. In light of our holding and the [398 Md. 71] subsequent procedural disposition of the case, we need not, and thus do not, address the second issue.

I.

On November 12, 1992, sometime before 7:03 a.m., Joyce Boyce, the appellant's biological mother, was admitted to the University of Maryland Hospital for an emergency c-section. The c-section began at 7:03 a.m., and the appellant was delivered at 7:06 a.m. She did not have a heartbeat at birth, was having difficulty breathing, and her Apgar scores were low (0 at one minute, 3 at 5 minutes, and 6 at 10 minutes). 2 The appellant had a breathing tube inserted, was placed on a ventilation machine, and was admitted to the Neonatal Intensive Care Unit ("NICU").

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Among other disabilities, the appellant currently suffers from cerebral palsy, mental retardation, and developmental delay. Apparently, a placental abruption (a premature separation of the placenta from the uterus) created the need for the emergency c-section and caused her disabilities.

On August 20, 2002, the appellant filed with the Health Claims Arbitration Office of Maryland a medical malpractice action against UMMS. She subsequently waived her right to arbitration in accordance with Maryland Code (1973, 2006 Repl.Vol.), § 3-2A-06B(b) of the Courts and Judicial Proceedings Article 3and the matter was referred to the Circuit Court [398 Md. 72] for Baltimore City, where the appellant, on August 22, 2003, filed an amended complaint. 4 The amended complaint asserted that the appellant's mother's prenatal evaluations were consistent with a normal pregnancy and with normal fetal development until the evening of November 11-12, 1992. 5 On that day, it asserted further, the appellant's mother, having developed abdominal pain at home, was seen at University of Maryland Hospital at approximately 2:00 a. m. on the morning of November 12, 1992--approximately five hours before her [398 Md. 73] emergency c-section. Additionally, the complaint alleged that, even though her mother was having abdominal pain and was near the end of her term, she stayed at the hospital for several hours without fetal monitoring, fetal ultrasonography, or obstetric evaluation being ordered. In other words, the appellant alleges that, after her mother initially made contact with a hospital medical employee at approximately 2:00 a.m., she was not seen or treated by the hospital staff until approximately 6:45 a.m. According to the appellant's complaint, the hospital's actions (or inactions) did not comply with the requisite standard of care and were the direct and

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proximate cause of the appellant's aforementioned disabilities resulting from the placental abruption.

The appellee disputed the appellant's version of events. Specifically UMMS asserted that Joyce did not arrive at the hospital until minutes before 6:45 a.m. on November 12, 1992, when she was taken directly to labor and delivery. Simply put, UMMS asserts that it did not become aware of Joyce's difficulties until she arrived at the hospital shortly before 6:45 a.m. (not the approximately five hours earlier alleged by Teonna) and that it complied with the requisite standard of care once it became aware of Joyce's situation.

The parties agreed that liability was dependent on one factual issue--when the appellant's mother presented and was treated at the hospital, i.e. whether she was in the hospital for approximately five hours without treatment or whether she arrived just prior to being taken directly to labor and delivery-, which would be resolved by a jury. Thus, all other facts having been stipulated, the jury was asked to answer the following question:

"Do you find, more likely than not, that Joyce Boyce waited in the University of Maryland Emergency Room for approximately five to six hours without treatment until she was taken to Labor and Delivery at approximately 6:45 a.m.?"

On the evidence admitted, the jury answered "No."

Prior to the commencement of the liability phase of the trial, UMMS filed a motion in limine seeking to exclude two [398 Md. 74] entries in Teonna's medical record and any testimony about the entries from, as relevant to this case, the appellant's mother or the doctors who made them. The basis for the motion was the appellee's contentions that the entries were inadmissible double hearsay that did not fall within an exception to the hearsay rule, that they were not pathologically germane, and that the appellant's mother's own testimony contradicted the notes.

The first disputed entry was made by the attending neonatologist, Dr. Renee Fox, at 4:45 p.m. on November 12, 1992. It read:

"Mother apparently developed abdominal pain at 2 a.m. Reportedly seen by Family Practice. Returned to ER and reevaluated and brought to Labor and Delivery and fetal heart rate less than 100." 6

The second disputed entry was made by third-year resident, Dr. Kevin Seymour, who wrote:

"Mom reported to be seen in ER around 2 a.m. for abdominal pain, evaluated, discharge, returned and referred to OB. Where fetal HR found to be much less than 100 necessitating a stat C-section."[7]

At her deposition, Dr. Fox testified that she had no first-hand information regarding the admittance of the appellant's mother. When asked to explain the above quoted entry, Dr. Fox initially stated that it was a history, after which the following exchange occurred:

"Q. Okay. Let's go to your next sentence. 'Mother apparently developed abdominal pain at 2 a.m.' Do you know where you obtained that information?

"A. No.

[398 Md. 75] "Q. You don't know if you read it somewhere in the medical record?

Page 1182

"A. I–I suspect that I was told it on rounds.

"Q. And why do you suspect that?

"A. Because I typically do not go back to the mother's medical record personally. I rely on the data that is provided to me by residents.

"Q. So when you write your note, you are, just as you said, relying on information that's provided to you, and you don't go back to verify it in any way?

"A. I do at times when--when I don't have the information.... I would have had to walk someplace else, pull up her [Joyce's] chart ... I know that I did not do that very often, unless I had--you know, somebody hadn't bothered to do their job. My job is to supervise residents and ensure that they get information.

. . .

"Q. And [the residents] acquire [this kind of history] from what source?

"A. They acquire it--typically, they acquire it from an obstetrical resident telling them something."

The rest of Dr. Fox's deposition testimony regarding the above quoted portion of her entry is substantially the same, explaining how she most likely gathered the information for the entry in the medical record from forms...

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