Fleming v. Prince George's County

• Citation: 358 A.2d 892,277 Md. 655
• Decision Date: 19 May 1976
• Docket Number: No. 148,148
• Parties: Ennis R. FLEMING et al. v. PRINCE GEORGE'S COUNTY et al.
• Court: Court of Appeals of Maryland

Page 655

277 Md. 655

358 A.2d 892

Ennis R. FLEMING et al. v. PRINCE GEORGE'S COUNTY et al.

No. 148.

Court of Appeals of Maryland.

May 19, 1976.

William E. Brooke, District Heights, for appellants.

William N. Zifchak, Upper Marlboro (James P. Salmon and Sasscer, Clagett, Channing & Bucher, Upper Marlboro, on the brief), for Prince George's County.

William A. Ehrmantraut (Donahue & Ehrmantraut, Rockville, on the brief), for Wilhelm.

John L. Ridge, Jr., Washington, D. C., for Rosson.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, ^* JJ.

SMITH, Judge.

Appellants, Ennis R. Fleming et al. (Fleming), sued Prince George's General Hospital, Inc. (the Hospital), Prince George's County, Dr. William D. Rosson (Dr. Rosson), and Dr. Frederick H. Wilhelm (Dr. Wilhelm), alleging that the negligence of the defendants was responsible for injuries sustained by Orpha E. Fleming on May 18, 1973, and her ultimate death on June 17, 1973. Plaintiffs included her husband, Ennis R. Fleming, her daughter, and the personal representative of her estate. A trial judge granted a directed verdict in favor of the defendants at the end of all of the evidence. We granted the writ of certiorari prior to consideration of the matter by the Court of Special Appeals. We shall reverse.

It is contended the trial court erred in ruling that there was no evidence upon which the jury could have determined that there was negligence and that it also erred in four instances in its rulings upon the evidence. We shall develop the relevant facts as we consider each point. I-Negligence

a. The Law

In considering the propriety of the grant of the motion of the defendant for a directed verdict we are obliged to resolve all conflicts in the evidence in favor of the plaintiffs 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 plaintiffs to recover. Taylor v. Armiger,277 Md. 638, 358 A.2d 883 (1976) (No. 146, September Term, 1975, decided May 19, 1976), and cases there cited.

The standards by which a physician and a hospital are to be judged in cases such as this were recently enunciated by Judge Levine for this Court in Shilkret v. Annapolis Emergency Hosp., 276 Md. 187, 349 A.2d 245 (1975):

'(A) physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances. Under this standard, advances in the profession, availability of facilities, specialization or general practice, proximity of specialists and special facilities, together with all other relevant considerations, are to be taken into account.' Id. at 200-01, 349 A.2d at 253.

'(A) hospital is required to use that degree of care and skill which is expected of a reasonably competent hospital in the same or similar circumstances. As in cases brought against physicians, advances in the profession, availability of special facilities and specialists, together with all other relevant considerations, are to be taken into account.' Id. at 202, 349 A.2d at 254.

b. General Facts

Dr. Rosson had been the family physician for the Flemings for about 11 years prior to the incident in question. He and Dr. Wilhelm had a mutual agreement to cover calls for each other. Mrs. Fleming had been treated by Dr. Rosson for a lung condition. On May 11, 1973, she was seen by Dr. Rosson in his office. At that time she complained of nausea, fatique, weakness, and a pain in her lower back. Mrs. Fleming was then approximately 67 years of age.

On May 13, 1973, Mrs. Fleming was admitted to Prince George's County Hospital with congestive heart failure, lung disease, and hypertension. Dr. Wilhelm was the admitting physician. He was covering calls on that day, a Sunday, for Dr. Rosson.

On May 14, Dr. Rosson prescribed Librium, in doses of 10 mgs, three times per day, after she complained of nervousness and anxiety. Mrs. Fleming had been on a prescription of Librium since October 1972 with the same prescribed dosage. Although the nurses' records report that she was periodically disoriented, such behavior was not observed by her attending physician until May 17, 1973, despite daily contact. At approximately midnight on that day she was found walking the corridor of the hospital with a sheet over her and waving a dinner knife. The nurses on duty were unable to persuade her to return to her room. She struck at them with the knife. Dr. Rosson arrived and attempted to get her back into her bed. She resisted, gesturing at him with the knife. She then went down to the main lobby where she attempted to leave the hospital. The security guards brought her back, a Posey vest restraint was ordered for her, and Valium, 5 milligrams was administered at 12:20 a. m. on May 18 by order of Dr. Rosson. He also wrote an order that she should be watched carefully and that all sharp instruments should be kept away from her.

Sometime later the patient was still restless and unable to sleep. Consequently, Nurse Decker placed a phone call to Dr. Rosson. The answering service contacted Dr. Wilhelm's home. Nurse Decker told Dr. Wilhelm of the earlier incident and that the patient was still quite restless. She also told him that Mrs. Fleming had been placed in restraints and had been administered the dosage of Valium prescribed by Dr. Rosson. At 3:25 a. m., Dr. Wilhelm prescribed 50 milligrams of Seconal to be given intramuscularly immediately. If that was not effective after one hour she was to receive 5 milligrams of Valium intramuscularly. He also ordered the taking of her vital signs as often as possible and directed that all her meals be served with plastic flatware. The Seconal injection was administered. When Nurse Decker checked ten minutes later Mrs. Fleming was apparently resting quietly.

At approximately 4:00 a. m., 10 minutes after Mrs. Fleming was last checked upon, the nurses discovered that she was absent from her room. They began to search for her. Subsequently, a sheet was seen hanging out of the window of her room. Investigation revealed that the patient had apparently attempted to escape from the Hospital through the window. She had fallen several floors to her severe injury.

Dr. Harold L. Hirsh was called as an expert witness by Fleming. Dr. Hirsh was licensed to practice medicine in the District of Columbia in 1943 and had practiced since that date. He was licensed in Maryland in December 1969. Dr. Hirsh is a specialist in the field of internal medicine, being a diplomate of the American Board of Internal Medicine. Dr. Hirsh described himself as familiar with the standards of care and skill required of physicians and hospitals in Prince George's County in May 1973. His qualifications were accepted by the trial court and are not challenged on appeal.

c. Negligence of Dr. Rosson

Dr. Hirsh testified that it was his 'opinion, with reasonable medical certainty, that (Dr. Rosson) failed to meet the standard of care under the circumstances, one, in (Mrs. Fleming's) pre-hospital evaluation; second, during the course of her hospital stay, her ongoing evaluation. (He) th(ought) that (Dr. Rosson) did not meet the standard of care on the night of the 17th,' the night that she jumped or fell to her ultimate death.

Dr. Hirsh said:

'Dr. Rosson testified that Mrs. Fleming was cantankerous, was not complying with his request, . . . or with his advice . . .. Did not do what he had advised her to do. Did not keep her appointments, terminated her appointments frequently without getting what she came for, and apparently felt a great deal of distress and frustration about that.

'It is a well-known medical fact that elderly people who become obstinate and stubborn and cantankerous frequently are manifesting one of two things: One of them is that they are developing some cerebral arteriosclerosis, some senility is a common term, or maybe a manifestation of depression. There are well-known medical facts.

'I think that Dr. Rosson fell below the standard of care when he merely assumed her behavior was due to obstinacy or stubbornness and did not, at that point, investigate or try to find out whether, in fact, this was purely her personality or whether, in fact, this represented some medical emotional change. And in any event, even if it turned out to be a personality problem, I think that he failed to take appropriate action in overcoming it, to the patient's detriment.

'So that I did not hear him testify that he had talked to her husband or to other members of her family trying to get them to understand how important it was for them to try to get her to conform to the treatment to-to what she was supposed to do.'

He thought the proper standard would have required Dr. Rosson to ascertain whether this was a personality problem or whether it represented some medical condition which might respond to treatment. Also, Dr. Hirsh said, '(K)nowing that she was obstinate or cantankerous for whatever reason, to her detriment,' then Dr. Rosson 'should have taken other measures. Whether they would have been successful or not we don't know, but in any event he did not undertake to do something more about it, by enlisting her husband's aid or perhaps other members of the family.'

Dr. Hirsh pointed out that the nurse's notes stated that on May 14 'the patient was nervous and apprehensive,' after which Librium was prescribed by Dr. Rosson in the amount of 10 milligrams, three times a day, at 10:00 in the morning, 2:00 in the afternoon, and 6:00 at night. Dr. Hirsh was of the opinion that giving Librium 'in this concentrated form over a limited period of hours did fall below the standard of care.' He said that 'we know that it's not rare, it's infrequent, that you will get mental disturbance with the use of a drug like Librium, that when (Dr. Rosson) saw these symptoms . . . on the nurses'...