Curry v. Hillcrest Clinic, Inc.

• Decision Date: 01 September 1993
• Docket Number: No. 546,546
• Parties: Lydia CURRY v. HILLCREST CLINIC, INC. ,
• Court: Court of Special Appeals of Maryland

Page 477

99 Md.App. 477

638 A.2d 115

Lydia CURRY v. HILLCREST CLINIC, INC.

No. 546, September Term, 1993.

Court of Special Appeals of Maryland.

March 14, 1994.

Certiorari Granted July 14, 1994.

John Amato, IV (Goodman, Meagher & Enoch, on the brief) Baltimore, for appellant.

R. Wayne Pierce (Niles, Barton & Wilmer, on the brief) Baltimore, for appellee.

Argued before BISHOP, FISCHER and DAVIS, JJ.

BISHOP, Judge.

Appellant/Cross-Appellee, Lydia T. Curry ("Curry"), and Darlene Alston, Curry's mother and next friend, filed an amended claim in the Health Claims Arbitration Office ("HCAO") against Dr. Sheo P. Sharma ("Sharma") and appellee/cross-appellant, Hillcrest Clinic, Inc. ("Hillcrest"), alleging medical malpractice. After Hillcrest was served with process and failed to file a response, Curry moved for an order of default, which the Director of the HCAO ("Director") entered against Hillcrest. Hillcrest failed to respond to the notice of order of default, and, upon Curry's motion, the Director entered an award by default against Hillcrest. Hillcrest filed a motion to strike the award by default, which, after a hearing, the HCAO panel chair ("Chairperson") denied. At the conclusion of a panel hearing on the merits of Curry's claim against Sharma, the panel concluded that Sharma was negligent, but that his negligence was not the proximate cause of Curry's injuries. The Chairperson further ruled that, despite Hillcrest's default, Sharma's successful defense could inure to the benefit of Hillcrest. Judgment of no liability was entered as to both Sharma and Hillcrest.

Curry filed a notice of rejection with the Director. Curry also filed (1) an action to nullify the award in the Circuit Court for Baltimore County, along with (2) a motion to enter a default order against Hillcrest for willful failure to answer the claim and failure to satisfy a condition precedent to judicial review, and (3) a petition to vacate the panel award, in which she alleged that the panel exceeded its powers by allowing Sharma's successful defense to inure to the benefit of Hillcrest. Hillcrest filed a motion to dismiss the action, alleging that Curry filed the notice of rejection prematurely and that the circuit court did not have jurisdiction over the case. The circuit court denied Curry's and Hillcrest's motions, granted Curry's petition and vacated the panel award, and directed that the case proceed in the circuit court. At the conclusion of a jury trial, the jury rendered a defendants' verdict. Curry filed a timely notice of appeal to this Court, and Hillcrest filed a timely notice of cross-appeal.

Issues

Curry and Hillcrest raise three issues, which we reorder and restate as follows:

I. Does the circuit court have jurisdiction to entertain an appeal from an award of the HCAO when the rejecting party files a notice of rejection with the Director after the award is entered on the HCAO docket, but before the award is served on the rejecting party?

II. Did the circuit court err when it ruled that Sharma's successful defense could not inure to the benefit of Hillcrest?

III. When a health care provider intentionally defaults at the HCAO level, is it precluded from litigating liability de novo in the circuit court, i.e., does its failure to have the panel determine its liability mandate that a default judgment likewise be entered at the circuit court level?

Facts

This medical malpractice action arises out of Sharma's failed attempt to abort Curry's pregnancy while working at Hillcrest's facility in Baltimore County. Although the particular facts of this case are tragic, and hotly disputed by the parties, they are not relevant to the disposition of this appeal. We shall, however, give a chronology of the HCAO and circuit court proceedings in order to provide a framework within which to discuss the issues.

The unique procedural history of this case cannot be understated. Curry filed her original claim with the HCAO on July 19, 1989. Curry later filed an amended claim, which was served on Hillcrest on March 5, 1990. In the amended claim Curry averred in count one:

1. During the morning hours of March 29, 1988 [Curry], then 17 years old, presented herself at the defendant's facility ... for the purpose of getting an abortion. [Curry] was pregnant carrying a 16 1/2--17 1/2 week old fetus. On being received at the clinic, the staff, under the direction and control of the defendant, [Sharma], did a sonogram and inserted a dilapan into [Curry]'s cervix which remained for approximately two hours. Thereafter the defendant, Sharma, removed the dilapan and attempted to dilate the cervix. Although the defendant had difficulty in this procedure, he nevertheless proceeded with the attempted abortion by inserting a suction catheter. Because the patient was uncomfortable and was moving around on the table, the defendant stopped the procedure and sent the patient home with instructions that she report to the ... East Baltimore Medical Center the following morning for completion of the abortion. In the course of the attempted abortion at Hillcrest, the defendant, [Sharma], perforated his patient's uterus and colon. Dr. Sharma and the staff at Hillcrest were fully aware that the attempted abortion had resulted in serious bodily harm to the plaintiff ... in the manner set out above. Despite this the plaintiff was not told of the nature and extent of the harm inflicted by the defendants at the Hillcrest Clinic. On March 30, 1988 the plaintiff appeared at the East Baltimore Medical Center where she was admitted. At the East Baltimore Medical Center the claimant was examined, given medication and sonogram. The patient became tachycardic. At John Hopkins Hospital, Dr. Karin Blackmore attempted, under anesthesia, a dilation and suction evacuation. During the course of this procedure it was suspected that the uterus and the colon had been cut at Hillcrest and thereupon Dr. Ira Horowitz of the GYN and Oncology Services was called for immediate consultation. The decision was made to perform an exploratory laparotomy. In the early morning hours of March 31, 1988 Dr. Horowitz, after diagnosing a perforated uterus and trauma to the rectosigmoid, completed the uterus evacuation, repaired the uterine defect, fashioned a Hartman's Pouch and completed a rectosigmoid colostomy. [Curry] remained a patient in Johns Hopkins Hospital until April 12, 1988....

2. Under the standards of medical and obstetrical care, the defendants, [Sharma] and the Staff of Hillcrest Clinic, Inc., are charged with the responsibility of performing a safe and infection-free abortion and with the responsibility of follow-up care with particular reference to any complications that might develop during the abortion procedure. The defendants are also responsible for choosing, and properly advising their patients of, the proper method of abortion and the proper facility wherein the abortion should be carried out that provides the least health hazard for her, based on physical condition and length of pregnancy.

3. It is further asserted that the defendants, having undertaken the obstetrical and gynecological care with regard to [Curry], had the responsibility to make themselves aware of any complications that might have developed during the abortion procedure, such as traumatizing the uterus and colon and thereafter of initiating and skillfully executing such medical procedures as were necessary to safeguard the life and health of their patient. In violation of the standards of medical and obstetrical care, the defendants jointly and severally were negligent in their failure to choose the proper method and facility for the abortion, in their failure to execute the abortion without damage to the uterus and colon, and in [their] failure to skillfully initiate and execute proper remedial procedures once the complication was recognized or should have been recognized. As a direct result, the claimant suffered severe and permanent damage. The defendants violated the standard of care:

a. by attempting to perform a suction abortion on a patient who was 16 1/2 weeks pregnant;

b. by cutting the uterus and colon while attempting a suction abortion;

c. by not sending [Curry] for further treatment immediately instead of telling her to report for further care the next day knowing that he had damaged her uterus and colon;

As a result of this violation of the standard of care, [Curry] had to have a colostomy. The clinic is liable under the doctrine of respondent superior for the actions of Dr. Sharma.

4. [Curry] claims damages for her permanent injuries, her past, present and future physical pain and mental anguish, medical expenses and economic loss. The negligence complained of occurred in Baltimore County where venue is sought. The amount in controversy exceeds $10,000.00.

5. Defendant Sharma, maliciously, deliberately and falsely reported, or did so with such reckless disregard for the truth and Curry's condition so as to constitute malice, to Drs. Brown and Blackmore of East Baltimore Medical Center/Hopkins, that he never inserted a suction catheter into Curry's person, that he had not perforated Curry's uterus and colon, that 16 1/2 weeks was within his safe "cut-off" for performing a suction abortion but that because Curry was "moving around" she needed a saline abortion under hospital conditions. The Hopkins staff relied on this false information in their decision not to bring Curry in immediately rather than the next day. Dr. Sharma made these false statements with the intent of covering up his actions and in so doing, compromised Curry's recovery. Claimant therefore seeks punitive damages in an amount in excess of $10,000.00.

The contents of counts two, three, and four are not relevant to this appeal.

On April 26, 1990, and again on May 16, 1990, before the HCAO, Curry moved for an order of default, as Hillcrest had failed to file a response to the amended claim. An order of...