Brown v. Meda

Decision Date01 September 1987
Docket NumberNo. 581,581
Citation74 Md.App. 331,537 A.2d 635
PartiesDorothy Virginia BROWN, et vir. v. Harinath S. MEDA. ,
CourtCourt of Special Appeals of Maryland

Gilbert H. Robinette (Henry E. Dugan, Jr. and Robinette, Dugan & Jakubowski, P.A., on the brief), Baltimore, for appellants.

Ronald U. Shaw (Stephen J. Hughes and Miles & Stockbridge, on the brief), Baltimore, for appellee.

Argued before MOYLAN, WEANT and POLLITT, JJ.

POLLITT, Judge.

Dorothy Virginia Brown and her husband, Rudolph S. Brown, appeal from a judgment notwithstanding the verdict entered in the Circuit Court for Baltimore City, which set aside a jury verdict in the amount of $600,000 in favor of the Browns against Dr. Harinath S. Meda and entered judgment in favor of Dr. Meda. The appellants present four questions on appeal, which they state as:

I. Whether a motion for judgment or motion for judgment n.o.v. can ever be granted against a Plaintiff who won at the arbitration proceedings and who has not rejected the arbitration award.

II. Whether the trial court erred in granting the motion for judgment n.o.v. as a matter of law.

III. Whether the trial court erred in granting the motion for judgment n.o.v.

IV. Whether the doctrine of res ipsa loquitur should apply to medical malpractice cases.

Background

On 11 February 1980, Dorothy Virginia Brown underwent bilateral breast biopsy surgery. Mrs. Brown alleged that following this operation she experienced symptoms of ulnar nerve injury, but had no symptoms prior to the procedure. She alleges that she continues to suffer severe and painful disabling injuries and must continue to receive hospital and medical care.

Mrs. Brown and her husband filed an action for medical malpractice against appellee, Harinath S. Meda, M.D., and against Ronald H. Fishbein, M.D., Jacob C. Handelsman, M.D., Alvaro Jarez, M.D., Bonnie Plichta, Sinai Hospital of Baltimore, Inc., S. Goode, R.N., and L. Penix, R.N., asserting that she received an ulnar nerve injury to her right arm during the breast biopsy as the result of the improper positioning of her arm while she was unconscious. The original action was filed on 25 January 1983 with the Health Claims Arbitration Office.

The case was heard by the Health Claims Arbitration Panel beginning 29 April 1985. Prior to the hearing, appellants dismissed with prejudice their claims against everyone except Plichta, Sinai Hospital, and Dr. Meda. Subsequently the arbitration panel granted the motions for judgment filed by the remainder of the health care providers at the close of plaintiffs' case, leaving only the claim against Dr. Meda, who had allegedly administered the anesthetic during the surgery. The panel determined Dr. Meda was solely liable for negligently causing Mrs. Brown's nerve injury and awarded her $300,000.

Dr. Meda filed a notice of rejection of the arbitration panel's award and the Browns subsequently filed a complaint and election for jury trial. Their complaint alleged that Dr. Meda was negligent in that he, his agents, servants and employees, failed to position Mrs. Brown's arm properly for the surgical procedure and failed to monitor the position of her arm carefully while she was unconscious.

Appellee's motion for judgment at the conclusion of the evidence (Rule 2-519) was denied and, as previously stated, the jury awarded appellants damages of $600,000. Appellee then moved for judgment notwithstanding the verdict. (Rule 2-532) Relying on this Court's holding in Hans v. Franklin Square Hosp., 29 Md.App. 329, 347 A.2d 905 (1975), cert. denied, 276 Md. 744 (1976), the trial court found that the testimony of appellants' expert witnesses, both before the arbitration panel and before the jury, "rested upon inferences and thus constituted the kind of res ipsa loquitur evidence barred by Hans," and granted the motion. This appeal followed.

I and II

Appellants first assert that neither a motion for judgment nor a motion for judgment notwithstanding the verdict can ever be granted against a plaintiff who prevailed before the Health Claims Arbitration Panel and did not reject the award. They posit, therefore, that the judgment granted in this case is erroneous as a matter of law. The basis for this argument is Maryland Code (1974, 1984 Repl.Vol., 1987 Cum.Supp.) § 3-2A-06(d) of the Courts and Judicial Proceedings Article, which states:

(d) Admissibility of award; presumption of correctness.--Unless vacated by the court pursuant to subsection (c), the unmodified arbitration award is admissible as evidence in the judicial proceeding. The award shall be presumed to be correct, and the burden is on the party rejecting it to prove that it is not correct.

Appellants are correct when they assert that the statute shifts the burden of proof, Hahn v. Suburban Hosp. Ass'n, 54 Md.App. 685, 461 A.2d 7 (1983), but they are incorrect when they assert that a motion for judgment or a motion for judgment notwithstanding the verdict can never be granted in favor of the party bearing the burden of proof. In Attorney General v. Johnson, 282 Md. 274, 293, 385 A.2d 57, 68 (1978), the Court of Appeals said:

We begin by pointing out exactly what the statute provides in this regard: that the award is admissible as evidence, that it "shall be presumed to be correct, and [that] the burden is on the party rejecting it to prove that it is not correct." § 3-2A-06(d). The effect of this provision is precisely the same as occurs under the Workmen's Compensation Act, which provides that the Commission's decision is "prima facie correct and [that] the burden of proof shall be upon the party attacking the same." Md.Code (1957, 1964 Repl.Vol.), Art. 101, § 56(c). [emphasis added, bracketed material in original]

As was clearly stated by the Court in Moore v. Clarke, 171 Md. 39, 45, 187 A. 887, 890 (1936):

It nowhere appears in the statute that the Legislature intended that any party to a proceeding before the Commission could secure a right through the Commission's error, but, on the contrary, the clear intention of the statute is that no rights shall accrue under it except upon facts proved or otherwise established sufficient to support the right asserted. The provision that the decision of the Commission shall be "prima facie correct" and that the burden of proof is upon the party attacking the same does not mean, therefore, that if no facts are established before the Commission sufficient to support its decision, that there is any burden of factual proof on the person attacking it, for the decision of the Commission cannot itself be accepted as the equivalent of facts which do not exist, and, in all cases, whether there is evidence legally sufficient to support the decision of the Commission is necessarily a matter of law to be decided by the court as any other question of law would be.

See also Md. Bureau of Mines v. Powers, 258 Md. 379, 383, 265 A.2d 860, 862 (1970), and cases there cited.

As previously noted, in ruling on the motion for judgment notwithstanding the verdict, the trial judge determined as a matter of law that there was no legally sufficient evidence of negligence before either the arbitration panel 1 or the jury. If those findings were correct, to be discussed infra, the trial judge did not err in granting the motion for judgment notwithstanding the verdict as a matter of law.

III

Appellants next assert that it was error to grant the motion for judgment notwithstanding the verdict because there was evidence to support the verdict of the jury. In considering this question, of course, we are obliged to resolve all conflicts in the evidence in favor of appellants and to assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the right of the appellants to recover. Fleming v. Prince George's County, 277 Md. 655, 358 A.2d 892 (1976).

Viewed in that light, the evidence discloses that Mrs. Brown was admitted to Sinai Hospital in Baltimore City for biopsies of her breasts to determine the presence or absence of cancer. The surgery was performed by Dr. Fishbein under general anesthesia administered by the appellee, Dr. Meda. Prior to the surgery she had experienced no problems with the right ulnar nerve. After the surgery, she experienced considerable pain in her right arm, which despite further surgery, physical therapy and other medical treatment, still persists. During surgery, it is necessary that the patient's arms be positioned and secured in a particular manner. Although Dr. Meda had no specific recollection of positioning Mrs. Brown's right arm, he acknowledged that is the responsibility of the anesthesiologist. He further agreed that it would be a violation of the standard of care for an anesthesiologist not to position the arm properly to protect the ulnar nerve from injury.

Dr. Gary Belaga, a neurologist, testified that he first saw Mrs. Brown in December of 1982. He reviewed her medical records back to and including the operation. She began to experience difficulty with the ulnar nerve in her right arm shortly after the operation. He ruled out other possible causes of ulnar nerve injury, such as leprosy, lead poisoning and activities such as prolonged use of a jackhammer. He looked for "some incident in her life where her arm would be immobilized for a long period of time in the position where it would be vulnerable to pressure in a circumstance where she would not be able to respond to that." He then said:

We have a perfect scenario with the operative procedure which occurred in February of 1980.

Her arm was strapped on a board, cushion board, but nonetheless pressure was abnormally applied to the ulnar area around the elbow and it was left there in a period of time and the patient was overcome with anesthesia, could not move it, take the pressure off or even report to her doctors that this happened.

We know that it happened at that time in addition because...

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