Barnes v. Greater Balt. Med. Ctr., Inc.

• Decision Date: 21 March 2013
• Docket Number: Sept. Term, 2011.,No. 0789,0789
• Citation: 63 A.3d 620,210 Md.App. 457
• Parties: David A. BARNES, et al. v. GREATER BALTIMORE MEDICAL CENTER, INC., et al.
• Court: Court of Special Appeals of Maryland

210 Md.App. 457

63 A.3d 620

David A. BARNES, et al.

v.GREATER BALTIMORE MEDICAL CENTER, INC., et al.

No. 0789, Sept. Term, 2011.

Court of Special Appeals of Maryland.

March 21, 2013.

Andrew H. Baida (Stuart A. Cherry, Rosenberg, Martin, Greenberg, LLP, Baltimore, MD, Christian A. Lodowski, Towson, MD), on the brief, for appellant.

Ronald W. Shaw & M. Natalie McSherry (Amanda P. Just, Shaw, Joseph & Just, PA, Hunt Valley, Katrina J. Dennis, Kramon & Graham PA, Baltimore, MD), for appellant.

Panel: WOODWARD, ZARNOCH, JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.

ZARNOCH, J.

STATEMENT OF THE CASE

In this appeal, we are confronted with another twist in the interpretation of the certificate requirement of the Healthcare Malpractice Claims Act (“HCMCA” or “the Act”), Maryland Code (1974, 2006 Rep. Vol., 2012 Supp.), Courts and Judicial Proceedings Article (“CJP”), §§ 3–2A–01–10. In the Circuit Court for Baltimore County, appellee/cross-appellant Greater Baltimore Medical Center (“GBMC”) ¹ moved to dismiss appellants'/cross-appellees', David A. Barnes and Laura A. Barnes, medical malpractice claim for failure to file a proper certificate of qualified expert. ² GBMC argued that the expert report did not explain the expert's opinions as required by the Act. This motion came not early in the proceedings, but on the eve of a second trial, when the expert had already testified at the first trial.³ The circuit court denied the motion. For reasons to be explained more fully, we affirm the court's ruling and conclude that GBMC's possession of the expert's mistrial testimony before the second trial cured any lack of detail in the expert report.

This case took another turn in the second trial after the jury found in favor of appellants, when the circuit court granted the motion for judgment notwithstanding the verdict (“JNOV”) of GBMC and appellees Dr. Jose V. Rustia, and Charles Emergency Physicians, P.A. (“CEP”). Previously, appellees had moved for judgment as a matter of law at the close of the Barneses' case and at the close of all evidence. The court denied these motions and the jury found in favor of the Barneses and awarded damages of $1,123,000. In granting the JNOV motion, the court found that the Barneses did not provide legally sufficient evidence of causation. The Barneses appeal this ruling. On this issue, we conclude that the Barneses did produce sufficient evidence for the jury verdict and the circuit court erred in granting the JNOV. We will therefore reverse the court's ruling and order reinstatement of the jury verdict.

As a final issue, GBMC appeals the denial of its motion for judgment, arguing that the Barneses did not produce sufficient evidence for the case to even proceed to the jury. For reasons that follow, we reject GBMC's contentions.

FACTS AND LEGAL PROCEEDINGS

David Barnes went to see his primary care physician, Dr. Allen Halle, on January 26, 2005, because he was experiencing weakness in his right hand grip, numbness, and tingling in his right arm. Dr. Halle was concerned that Mr. Barnes was having a transient ischemic attack (mini-stroke) or was in the beginning phases of a stroke. He called Mrs. Barnes and told her that her husband needed to go to the hospital immediately. Mrs. Barnes picked up her husband and drove him to GBMC. Dr. Halle also gave Mrs. Barnes a note that she was to give to the registration desk upon arrival. The note stated that Dr. Halle wanted Mr. Barnes to have a “stroke work up.”

Mr. Barnes arrived at GBMC around 5:20 p.m. He first saw the “quick look nurse,” Candance Starstrom, who determines where the patients should be routed and which patients should be seen by the triage nurse. The triage nurse performs a more thorough assessment. The Barneses told Nurse Starstrom that his primary care physician sent Mr. Barnes to the emergency room. Nurse Starstrom also read Dr. Halle's note. On the hospital assessment form, there is a space to indicate the priority of a patient's condition, one being the most serious and four being the least. Nurse Starstrom circled that Mr. Barnes' condition was a priority number one. Nurse Starstrom testified that priority number one “represents a potentially life threatening situation and should be automatically routed to the main emergency department.” She also wrote on the form that Mr. Barnes “had a weak right grip, tingling in the right hand, a numb right side, and that he had been seen by his primary care doctor and directed to the GBMC emergency room.” She then attached Dr. Halle's note to the front of the form.

Mr. Barnes was sent to the triage nurse, Carol Stopa, at 5:49 p.m. Nurse Stopa testified that she did not see Dr. Halle's note. The Barneses argued that Nurse Stopa changed the priority from one to four on the form, and crossed out the word “side” and changed it to “hand” so it said “numb right hand” instead of “numb right side.” Although she did not remember the incident, Nurse Stopa testified that the signature on the form was probably hers and some of the writing was hers. Nurse Stopa sent Mr. Barnes to the urgent care department (for less serious conditions), not the emergency department.

Mr. Barnes then saw Dr. Rustia, the emergency medicine physician who was on duty in the urgent care center. Dr. Rustia testified that he did not see Dr. Halle's note, and if he had, he would have walked Mr. Barnes over to the main emergency department to have the stroke work up. Dr. Rustia ordered a wrist x-ray, diagnosed Mr. Barnes with carpal tunnel syndrome, gave him pain medication, prescribed an anti-inflammatory medication, and told him to follow up with a hand surgeon.

As Mr. Barnes was leaving at around 6:20 p.m., Nurse Starstrom saw him in the parking lot and felt that he had not been there long enough to have a stroke work up. She looked at Mr. Barnes' assessment form and saw that he did not receive the work up. She told the charge nurse, Lori Hart, and Nurse Hart called Dr. Halle, who instructed her to call Mr. Barnes and have him return to the emergency room. She left a message on the Barneses' answering machine at 6:40 [210 Md.App. 463]p.m. The Barneses live thirty to forty minutes from GBMC and returned to the hospital around 8:30 p.m.

Upon returning, Mr. Barnes received at least a partial stroke work up. The nurses started him on an IV, drew blood, conducted blood tests, ordered a CAT scan of the brain, and performed an electrocardiogram. Dr. Elias Abras was the emergency room physician who examined Mr. Barnes. He ruled out a hemorrhagic stroke based on the CAT scan. After a few other tests, Dr. Abras concluded that Mr. Barnes needed to be admitted because he “needed more evaluation” and that the evaluation “ha[d] to be done by the attending physician.” Since Mr. Barnes had medical insurance through Kaiser Permanente, Dr. Abras testified that he needed a Kaiser hospitalist to admit Mr. Barnes. ⁴ The only Kaiser hospitalist on duty that evening was Dr. Vikesh Singh. Dr. Abras called Dr. Singh and asked him to come evaluate and admit Mr. Barnes. Dr. Singh said he would come as soon as possible. Dr. Abras continued to call Dr. Singh for several hours, but Dr. Singh never arrived. Tired of waiting, Mr. Barnes wanted to go home. Dr. Abras claimed to have told Mr. Barnes that “he had a mini-stroke and it was important for him to follow up with Dr. Halle in the morning to complete the evaluation.” Mrs. Barnes said “I was never told a diagnosis.” ⁵ Dr. Abras discharged Mr. Barnes around 1:00 a.m. on January 27.

The next day, Mrs. Barnes went to work. Mr. Barnes called Dr. Halle and told him about the previous day's events. Dr. Halle planned for Mr. Barnes to see a neurologist on January 31, and he planned for Mr. Barnes to have an MRI, a doppler study of his neck, and an echocardiogram within one week. But when Mrs. Barnes came home, Mr. Barnes was sitting in a recliner with his back to her. She asked about the doctor. He pointed to a piece of paper on her vanity. Mrs. Barnes looked at the note on vanity, but it was nothing but scribbles. So then she walked around so she could see Mr. Barnes and asked if he was okay. But he did not look okay: “[h]is mouth was all crooked.” At that point Mrs. Barnes' cousin drove the Barneses to GBMC. Mr. Barnes had suffered a stroke.

The Barneses waived arbitration under CJP § 3–2A–06(B) and filed suit in the Circuit Court for Baltimore County against GBMC, Dr. Rustia, and CEP.⁶ The Barneses filed a certificate of qualified expert and expert report, as required by CJP § 3–2A–04. Dr. Kenneth Larsen signed the certificate and report. He was later deposed. After several motions and additional discovery, a trial began on February 2, 2010 and Dr. Larsen fully testified at this trial. After four days of trial, the circuit court had to declare an administrative mistrial because of a massive snow storm.

The second trial was set to begin in March 2011. The defendants filed several more motions based on the events of the first trial, including one to prohibit Dr. Larsen from testifying regarding proximate cause. The day before the second trial started, GBMC moved to dismiss the case for failure to file a proper certificate of qualified expert. GBMC argued that the report was insufficient because case law required that the report describe the standard of care, how the specific defendants violated the standard of care, and how the violation proximately caused the plaintiff's injuries. After a discussion of the case law, the circuit court denied the motion to dismiss, finding that GBMC was too late in filing the motion.

During trial, one of the plaintiff's other experts, Dr. Marion Lamonte, testified regarding the breach of the standard of care and proximate cause. GBMC and Dr. Rustia believe that Dr. Lamonte's proximate cause testimony did not include that Dr. Rustia should have admitted Mr. Barnes to the hospital. But during Dr. Lamonte's direct testimony, the Barneses' attorney asked ...