Franklin v. Gupta

• Decision Date: 03 January 1990
• Citation: 81 Md.App. 345,567 A.2d 524
• Parties: Sylvester FRANKLIN, Jr. v. Shanker L. GUPTA, et al. 940 Sept. Term 1989.
• Court: Court of Special Appeals of Maryland

Page 345

81 Md.App. 345

567 A.2d 524

Sylvester FRANKLIN, Jr. v. Shanker L. GUPTA, et al.

940 Sept. Term 1989.

Court of Special Appeals of Maryland.

Jan. 3, 1990.

Richard W. Winelander and Donald J. Katz, Lutherville, for appellant.

Angus R. Everton (Montedonico & Mason, Chartered, on the brief), Baltimore, for appellee, Herbert S.T. Lee.

Catherine A. Potthast (Patti Gilman West, C. Robert Loskot and Smith, Somerville & Case, on the brief), Baltimore, for appellees, Sergott and Church Hosp. Corp.

William F. Ryan, Jr., Robert Rider, Jr. and Whiteford, Taylor & Preston, Baltimore, on the brief, for appellee, Gupta.

Argued before WILNER and BISHOP, JJ., and JAMES S. GETTY, Judge of the Court of Special Appeals (retired), Specially Assigned.

WILNER, Judge.

This is a medical malpractice case. Appellant, an unfortunate soul with a host of physical and emotional problems, also developed carpal tunnel syndrome--a condition that causes pain in the wrist and muscle weakness in the hand. He consulted Dr. Shanker L. Gupta, a general surgeon, who recommended surgical treatment for that condition.

Surgery was scheduled at Church Hospital for 10:00 a.m. July 17, 1981. Dr. Herbert S.T. Lee, an anesthesiologist, and Gary J. Sergott, a certified registered nurse anesthetist, were assigned by the hospital to administer and monitor the anesthesia. Unfortunately, Dr. Lee was also scheduled to administer and monitor anesthesia to another patient in another operating room at the hospital at the same time. Dr. Lee chose to tend to the other patient, and so the actual administration and monitoring of the anesthesia to appellant fell to Nurse Sergott. As we shall see, things did not go as planned. The anesthesia administered by Nurse Sergott was not only not effective, but appellant suffered certain physical and emotional trauma from it, and the surgery was eventually cancelled.

As a result of this experience, appellant filed a claim with the Health Claims Arbitration Office against Dr. Gupta, Dr. Lee, Nurse Sergott, and the hospital. After an evidentiary hearing, the arbitration panel found no liability on the part of any of the defendants and entered an award in their favor. Appellant rejected the award and filed suit in the Circuit Court for Baltimore City.

After a de novo trial, the jury agreed with the arbitration panel that there was no liability on the part of Dr. Gupta, but it concluded that the other defendants were culpable. It returned a verdict in favor of Dr. Gupta but against Dr. Lee, Nurse Sergott, and the hospital in the amount of $375,000.

Appellant's 75% victory was short-lived. Believing that appellant had failed to show either the standards of care that were violated or that the violations shown were the proximate cause of the injuries suffered by him, the court granted motions for judgment NOV filed by Lee, Sergott, and the hospital and entered judgment in their favor. Further declaring its judicial conscience shocked by what it regarded as "grossly excessive" damages, the court also conditionally granted motions by Lee, Sergott, and the hospital for a new trial unless appellant agreed to accept a remittitur of all but $50,000. The effective judgment was in favor of all four defendants and ended the case in the Circuit Court. The grant of a new trial as to Lee, Sergott, and the hospital was to become effective only if the judgments NOV were reversed on appeal and appellant refused to accept the remittitur. See Md. Rules 2-532(e); 2-533(c).

This appeal followed. Appellant complains that the court erred (1) in entering the judgments NOV, (2) in ordering the new trial in default of appellant accepting a $325,000 remittitur, and (3) in declining to give two requested jury instructions bearing on Gupta's liability.

We find merit in appellant's first complaint; the court erred in granting the judgments NOV. We find no reversible error in the other decisions. We therefore shall affirm the judgment in favor of Dr. Gupta, reverse the judgments in favor of the other three defendants, and remand the case for such further proceedings as may be required by the order conditionally granting a new trial.

I. UNDERLYING FACTS

We mean no disrespect when we say that appellant was not a picture of health when he presented himself at the hospital on July 16, 1981--the day before his scheduled surgery. He had a history of syncope (temporary blackouts), asthma, emphysema, bronchitis, hyperthyroidism, chronic depression, and a nervous condition. He was also excessively--"morbidly"--obese; five feet, five inches tall, he weighed 295 pounds. He was permanently and totally disabled from employment and subsisted from social security disability benefits.

Dr. Lee, as we indicated, was designated by the hospital as the anesthesiologist for appellant's surgery, along with Nurse Sergott. Dr. Lee visited appellant on the afternoon of the 16th for an "anesthesia evaluation." Because of the patient's asthma, obesity, and hyperthyroidism, Dr. Lee recognized that appellant was a "high risk patient for anesthesia"; he therefore decided against a general anesthesia and opted instead for an axillary or brachial block. ¹ He did not, however, determine which anesthetic to use or which, if any, analgesic to use. Nor did he, prior to the surgery, (1) record his evaluation in appellant's chart, (2) see appellant again, or (3) discuss the case in any way with Nurse Sergott. At 10:00 the next morning, Dr. Lee reported to the other operating room and had no further involvement with appellant until after the anesthesia administered by Nurse Sergott proved ineffective and a dispute arose between Nurse Sergott and Dr. Gupta as to what to do about it.

Sans any advice or direction from Dr. Lee and without any notes of Dr. Lee's evaluation in the medical record, Nurse Sergott examined appellant on the morning of the 17th, just before the surgery. He noted from his observations and from Dr. Gupta's notes that appellant was obese, asthmatic, and dyspneic (i.e., he had difficulty breathing). The last of these problems Nurse Sergott attributed to appellant's obesity and asthma, exacerbated by the fact that he was a heavy smoker. On the other hand, from the pre-operative tests that were done, it appeared that appellant's blood studies, electrocardiogram, blood pressure, heart rate, and chest x-ray were all normal. Nurse Sergott independently decided to use a brachial block; he decided, by himself, which drug to use for that purpose; and he also decided, by himself, what analgesic to use and how it was to be administered. The analgesic chosen by Nurse Sergott was Sublimaze--a synthetic narcotic analgesic listed as a Schedule II controlled dangerous substance.

Sergott administered the brachial block while appellant was in the "holding room." Just before administering that block, he gave appellant one cubic centimeter (cc) of the Sublimaze. As appellant was being wheeled into the operating room, Sergott gave him a second cc of Sublimaze, and about 10 minutes later he gave him a third cc of that drug.

At some point shortly after administering the third dose of Sublimaze, Nurse Sergott noticed that the block was "patchy"--i.e., "[t]he media flesh was not completely blocked on his hand." He wanted to give appellant another block, but Dr. Gupta insisted that he put appellant to sleep. Believing that general anesthesia was inappropriate and that, "being a surgeon, [Dr. Gupta] is not aware of anesthesia," Nurse Sergott decided to consult Dr. Lee who, of course, was in another operating room. Sergott summoned another nurse anesthetist--Ms. Belvay--went over appellant's vital signs with her, and then left to consult with Dr. Lee. Dr. Lee, then busy with another patient under anesthesia and unable to leave, agreed that appellant should be given another brachial block and not put to sleep.

When Nurse Sergott returned to the operating room with this confirmation, he found Nurse Belvay ventilating appellant with oxygen. It appears that, about 10 minutes after administration of the third dose of Sublimaze and while Nurse Sergott was conferring with Dr. Lee, appellant's breathing became shallow. Indeed, according to the medical record, he became cyanotic--i.e., his skin turned blue because of lack of oxygen in the body. He then became bradycardic (slow heartbeat) and had a period of asystole (his heart stopped beating entirely). Just how long the asystole lasted is unclear, in part because the critical entry on the medical record is smudged with ink and is therefore unreadable; there was evidence that it lasted from 10 seconds to two minutes. Appellant was promptly intubated and given Atropine and cardiopulmonary resuscitation, and his heartbeat returned to normal. At that point, Dr. Lee appeared and instructed Dr. Gupta to cancel the surgery.

Appellant remained in the hospital until his discharge on July 21, 1981. He never did have the surgery on his wrist.

II. JUDGMENTS NOV--LEE, SERGOTT, HOSPITAL

A. Governing Principles

Preliminarily, we note that the hospital has conceded that Nurse Sergott was its employee; it is clear, then, that the hospital would be vicariously liable for any culpable negligence on Sergott's part. Our discussion of the evidence relating to Sergott, therefore, also applies to the hospital.

A plaintiff's burden in a medical malpractice case grounded on negligence was well-summarized in Lane v. Calvert, 215 Md. 457, 462-63, 138 A.2d 902 (1958):

"There is a presumption that the doctor [or other health care professional] has performed his medical duties with the requisite care and skill.... The burden of proof is on the plaintiff to show both a lack of the requisite skill or care on the part of the doctor and that such want of skill or care was a direct cause of the injury; and if proof of either of these elements is wanting the case is not a proper one for submission to the jury.... The ... degree of skill required is ... 'not the...