Dehn v. Edgecombe, 1536

• Decision Date: 04 September 2003
• Docket Number: No. 1536,1536
• Citation: 834 A.2d 146,152 Md. App. 657
• Parties: James W. DEHN et ux. v. Glenn R. EDGECOMBE et al.
• Court: Court of Special Appeals of Maryland

834 A.2d 146

152 Md. App. 657

James W. DEHN et ux. v. Glenn R. EDGECOMBE et al.

No. 1536, Sept. Term, 2002.

Court of Special Appeals of Maryland.

September 4, 2003.

Reconsideration Denied November 24, 2003.

David Lapp (Law Offices of Scott Hempling, P.C., on brief), Silver Spring, (Larry Burch, Burch & Burch-Rates, L.L.C., on brief), Greenbelt, for appellants.

Michelle R. Callender (Robert J. Farley, Wharton, Levin, Ehrmantraut & Klein, P.A., on the brief), Annapolis, for appellees.

Argued before GREENE, SHARER, CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.

MOYLAN, J.

The appellants, James and Corrinne Dehn, husband and wife, brought a four-count complaint against the appellee, Dr. Glenn Edgecombe, in the Circuit Court for Prince George's County. At the end of the plaintiffs' case, judgment was granted against the appellants on three of those four counts, and no issue as to them is raised on this appeal.

The only count that concerns us is the one that charged Dr. Edgecombe with negligence in failing to provide proper post-operative care to Mr. Dehn following a vasectomy. At the end of the plaintiffs' case, Judge Michelle D. Hotten granted judgment against Mrs. Dehn on that count. The trial went forward on Mr. Dehn's claim of negligence against Dr. Edgecombe. The ultimate two-pronged jury verdict was 1) that Dr. Edgecombe had negligently breached the applicable standard of care and his negligence was the proximate cause of Mr. Dehn's damages, but 2) that Mr. Dehn had himself been contributorily negligent.

With respect to the verdict of contributory negligence, the appellants do not claim that the evidence was not legally sufficient for Judge Hotten to have submitted the issue to the jury, nor do they claim any error in jury instructions on that issue. On appeal, the appellants raise the three issues:

1. that judgment was erroneously granted against Mrs. Dehn on the count charging negligence;

2. that three erroneous evidentiary rulings denied the jury probative evidence on the issues of 1) primary negligence, 2) contributory negligence and 3) the calculation of damages; and

3. that Judge Hotten erroneously limited the proof of damages to direct medical expenses and child-rearing costs.

Factual Background

At some time during 1994, when Mrs. Dehn was pregnant with the couple's second child, the Dehns decided not to have any more children. To that end, they decided that Mr. Dehn should undergo a vasectomy. Mr. Dehn discussed his desire with Dr. Edgecombe, his family practice doctor. Because Dr. Edgecombe was not qualified to perform a vasectomy, he referred Mr. Dehn to a surgeon, Dr. Samuel F. Mazella, who ultimately performed the vasectomy on October 24, 1995. There is no issue with respect to the referral to Dr. Mazella or with respect to the vasectomy itself.

Nor is there any issue with respect to the post-operative care, including post-operative advice, rendered by Dr. Mazella. Dr. Mazella expressly warned Mr. Dehn that the procedure might not be effective and that Mr. Dehn might still be able to father a child. To best insure against an unwanted pregnancy, Dr. Mazella instructed Mr. Dehn 1) that he was not to have unprotected sexual relations for six months and 2) that, during that time, he was to have at least twenty ejaculations. Dr. Mazella further provided Mr. Dehn with three prescriptions for semen analyses. He instructed Mr. Dehn to have the first semen analysis done after twenty ejaculations, and then to have the remaining two semen analyses completed at some time during the remainder of the initial six month period. The results of those tests were to be sent to Dr. Mazella's office. Only if and when the third analysis proved negative for sperm was the vasectomy to be considered to be a successful birth control measure. Dr. Mazella further expressly instructed Mr. Dehn to contact him, Dr. Mazella, if he had any concerns or problems during the post-operative period.

The evidence abundantly showed that Mr. Dehn negligently failed to follow Dr. Mazella's instructions. He never used the three prescriptions for semen analysis, because, he claimed, they were "vague" and they did not give him specific directions as to a laboratory, a date, or a location for the sperm count test. Mr. Dehn acknowledged that one reason he did not follow instructions was because he speculated that his health plan would probably not pay for the tests. Obviously, no sperm test results were ever sent by Mr. Dehn to Dr. Mazella's office.

Mr. Dehn testified that he was not aware that three semen tests were required. At one point, he stated that he thought the tests were merely a "follow-up" after the passage of six months and twenty ejaculations, without pointing out the significance of that conclusion. Mr. Dehn acknowledged that, notwithstanding the instructions to contact Dr. Mazella about any questions or concerns, he never again contacted Dr. Mazella. Mr. and Mrs. Dehn engaged in unprotected sexual relations in December of 1996, at which time she conceived the child whose unwanted birth is the object of the present suit.

All of the controversy swirls about the nature of one or more conversations between Mr. Dehn and Dr. Edgecombe during the period between the performance of the vasectomy in October of 1995 and the onset of Mrs. Dehn's pregnancy in December of 1996. During that time, Mr. Dehn saw Dr. Edgecombe, his primary care provider, on at least several occasions for medical matters unrelated to the vasectomy.

Dr. Edgecombe testified that it was not until July 8, 1996, eight months after the vasectomy, that he even learned, in the course of a visit for an unrelated matter, that the vasectomy had, indeed, been performed on Mr. Dehn. He stated that it was standard practice for only the specialist surgeon who performed the operation to handle all aspects of post-operative care, including the monitoring of semen analyses. He testified that on a single occasion, the visit of July 8, 1996, Mr. Dehn raised with him the subject of a semen analysis and that the subject came up in a casual and offhand manner as they were leaving the office.

"I had seen Mr. Dehn for a medically related topic. We were done. We were leaving the room and he said, `Oh, by the way, Doctor, I need a semen analysis.' [It] was highly unusual. No patient has ever asked me that before. Again, we were not in the room, we were in the hall leaving.

The patient said to me, `Dr. Mazella never asked or wanted to get a semen analysis.' That was unusual, and I told Mr. Dehn that I[had] had a vasectomy in the past and my urologist had wanted to get a semen analysis at three months after the vasectomy or after 13 ejaculations. At that point it was almost nine months past the point where this would have routinely been done.

I told Mr. Dehn also [that] it takes at least 13 ejaculations for the vas deferens, the sperm duct, to be emptied after a successful vasectomy. He told me that he had over twenty protected ejaculations. I also told Mr. Dehn in the hall that I had not heard of a vasectomy failing. Based on what he told me, that it was now six months after the fact when they are routinely done, and that he had twenty protected ejaculations, I'd assume that the surgeon had done the procedure correctly.

He also seemed to indicate that the surgeon had discharged him a long time previously and, based on that, I said `I guess you don't need to have a semen analysis. It should have been done at three months.'"

Dr. Edgecombe further testified that if Mr. Dehn had ever told him that he had not had a single semen analysis test and had not been discharged by Dr. Mazella, he would have sent Mr. Dehn back to Dr. Mazella. Dr. Edgecombe presented the expert opinion of Dr. Boyle, a family practitioner, that because of the referral of Mr. Dehn to Dr. Mazella, 1) there was no doctor-patient relationship between Dr. Edgecombe and Mr. Dehn as to the vasectomy and the post-operative care, 2) the patient had the responsibility to follow the instructions of the specialist, and 3) the referring physician could assume that such instructions were followed.

Mr. Dehn, by way of stark contrast, testified that he had expressly asked Dr. Edgecombe for "a referral for a semen analysis" on three separate occasions. The first was on May 24, 1996, when Mr. Dehn told Dr. Edgecombe that six months had passed since his vasectomy, that he had had twenty ejaculations, and that he needed a semen analysis to make certain that he was sterile. Dr. Edgecombe, however, reassured Mr. Dehn that there was no need for a semen analysis and that there was no risk of impregnating his wife. Mr. Dehn informed his wife about what Dr. Edgecombe had said, but she still wanted to wait for a semen analysis before engaging in unprotected sexual relations.

Accordingly, Mr. Dehn again raised the subject with Dr. Edgecombe on the occasion of his next medical appointment on July 9. He again asked Dr. Edgecombe for a referral for a semen analysis and was again told that there was no need for one. Mrs. Dehn, however, still insisted on waiting for a semen analysis before having unprotected sexual relations.

Mr. Dehn, according to his testimony, brought the subject up with Dr. Edgecombe on yet a third occasion on November 13, 1996. According to his testimony, Dr. Edgecombe replied:

"Jimmy, personally I had a vasectomy seven years ago. I didn't have a sperm count done. Me and my wife [sic] have practiced regular relations. You're not going to get your wife pregnant. Will you go home, [and] tell your wife I personally assure her you cannot father any children."

Dr. Edgecombe, on the other hand, denied that he had even seen Mr. Dehn on November 13, for any reason.

The Evidentiary Issues

It behooves us to consider first the appellants' contention alleging three evidentiary errors. It is the only issue bearing, even partially, on the propriety of the verdict of contributory negligence. If that verdict...