Green v. North Arundel Hospital

• Decision Date: 26 May 1999
• Docket Number: No. 538,538
• Parties: Darwin GREEN, a Minor, etc., et al. v. NORTH ARUNDEL HOSPITAL ASSOCIATION, INC., et al.
• Court: Court of Special Appeals of Maryland

730 A.2d 221

126 Md. App. 394

Darwin GREEN, a Minor, etc., et al. v. NORTH ARUNDEL HOSPITAL ASSOCIATION, INC., et al.

No. 538, Sept. Term, 1998.

Court of Special Appeals of Maryland.

May 26, 1999.

Suzanne C. Shapiro and Scott E. Nevin (Saul E. Kerpelman & Associates, P.A., on the brief), Baltimore, for Appellants.

Megan M. Auchincloss (Richard McMillan, Jr., Luther Zeigler and Crowell & Moring, LLP, on the brief), Washington, DC; Curtis H. Booth (Kurt D. Karsten and Cowdrey, Thompson & Karsten, P.A., on the brief), Annapolis, for appellee, North Arundel.

Gregory L. VanGeison (E. Dale Adkins, III, Lynne B. Malone and Anderson, Coe & King, LLP, on the brief), Baltimore, for appellee, Mody.

Larry A. Ceppos (Sharon A. Marcial, Jared S. Littmann and Armstrong, Donohue & Ceppos, Chtd., on the brief), Rockville, for appellees, Fields and Axelbaum.

Argued before WENNER, SALMON, and JAMES S. GETTY (Retired, specially assigned), JJ. SALMON, Judge.

Darwin Green (Darwin), a disabled minor child, through his parents and next friends, Teresa Johnson and Charles Johnson (appellants), instituted a medical malpractice action against North Arundel Hospital Association, Inc. (NAH); Richard T. Fields, M.D.; Stewart P. Axelbaum, M.D.; and Harshad R. Mody, M.D. (appellees).¹ Appellants claimed that appellees breached the applicable standard of care by failing to diagnose an alleged shunt malfunction in Darwin on August 18, 1988, and that a proper diagnosis would have prevented the child's subsequent injuries that have left him in a chronic vegetative state.

Appellants filed their original complaint in the Circuit Court for Baltimore City and named only NAH and Dr. Fields as defendants. Dr. Fields resides and carries on business solely in Anne Arundel County; NAH conducts business solely in Anne Arundel County. On March 20, 1992, Baltimore City Circuit Court Judge Richard T. Rombro ruled that appellants had filed their suit in the wrong venue and transferred the action to the Circuit Court for Anne Arundel County.

The Anne Arundel County Circuit Court set a trial date for June 1994. On May 17, 1994, appellants moved to stay the Anne Arundel County proceedings because they wanted to add two new defendants to the case—Drs. Mody and Axelbaum. As required by title 3, subtitle 2A, of the Courts and Judicial Proceedings Article of the Maryland Code (1998 Repl. Vol & Supp. 1998), appellants initially filed their claims against Drs. Mody and Axelbaum in the Health Claims Arbitration Office on May 20, 1994.² After the parties agreed to waive arbitration in December 1995, the arbitration panel chairman signed a transfer order on February 20, 1996, allowing appellants to proceed with their case against Drs. Mody and Axelbaum in circuit court.

Rather than moving to lift the stay in the Anne Arundel County action by adding Drs. Mody and Axelbaum to that pending case, appellants filed a new complaint in Baltimore City Circuit Court. Appellants' basis for filing in Baltimore City was that Dr. Mody regularly conducted business and maintained his medical office there. In the Baltimore City complaint, appellants not only named Drs. Mody and Axelbaum as defendants, but they also set forth claims against NAH and Dr. Fields—the same claims already pending in the Circuit Court for Anne Arundel County. On June 3, 1996, Baltimore City Circuit Court Judge David B. Mitchell granted appellees' motion to dismiss and imposed sanctions against appellants.³

Meanwhile, on February 22, 1996, appellants made a motion in the Anne Arundel County Circuit Court to transfer that pending action back to Baltimore City. On August 2, 1996, Circuit Court Judge Lawrence H. Rushworth held a hearing on the motion. At the time of that hearing, neither Dr. Mody nor Dr. Axelbaum had been added to the Anne Arundel County action. Judge Rushworth denied the motion to transfer at the conclusion of the August 2 nd hearing.

On August 9, 1996, appellants amended their original complaint by naming Drs. Mody and Axelbaum as defendants in the Anne Arundel County action. Dr. Mody was served with process on August 19, 1996. The record is unclear as to when Dr. Axelbaum was served with process, but he filed an answer to the amended complaint on September 17, 1996; Dr. Mody filed his answer two days later. At no time after August 9, 1996, did appellants renew their motion to transfer the case back to Baltimore City.

On October 30, 1996, Judge Rushworth bifurcated the case on the issues of liability and damages. Subsequently, the trial judge held a hearing on appellees' motion in limine to exclude Darwin from the courtroom during the liability portion of the trial. After hearing arguments and watching a videotape of a day in Darwin's life,⁴ Judge Rushworth granted the motion, finding that Darwin did not have the ability to communicate with his attorneys, nurses, or parents; that he would be unable to provide any assistance to his attorneys in preparing his case; that he would be unable to understand or comprehend the proceedings; and that his presence served no purpose other than to prejudice the jurors against the defendants.

Trial commenced on October 7, 1997. At the conclusion of plaintiffs' case, on October 17, 1997, Judge Rushworth granted NAH's and Mody's motions for judgment. The jury returned a verdict in favor of Drs. Fields and Axelbaum on October 21, 1997, having concluded that neither doctor "departed from accepted standards of care in the treatment of Darwin Green."

Appellants filed this timely appeal and present four questions for our review:

1. Did ... the Circuit Court for Baltimore City err as a matter of law in transferring [a]ppellants' action to Anne Arundel County ...?

2. Did ... the Circuit [C]ourt for Anne Arundel County err in denying [a]ppellants' motion to transfer [their] action back to the Circuit Court for Baltimore City once Dr. Mody was added to the action?

3. Did the trial court err as a matter of law in barring the [p]laintiff, Darwin Green[,] from attending his own trial as a result of his physical and mental disability, in that such exclusion violated the Americans With Disabilities Act, as well as fundamental notions of equal access to justice?

4. Did the trial court err in allowing [a]ppellees to present a theory of their case that is against Maryland case law as stated in Mehlman v. Powell?

We answer all of the questions in the negative and affirm.

FACTS

Darwin Green was born on February 12, 1977, with a medical condition called hydrocephalus. Hydrocephalus causes increased pressure on the brain due to an excessive accumulation of fluid. When Darwin was nine days old, doctors placed a shunt in the right ventricle of his brain that drained the extra fluid to another part of his body in order to prevent the buildup of intracranial pressure.

In 1981, when he was approximately four-and-a-half years old, Darwin complained of headaches and vomiting. Doctors determined that Darwin's shunt was not functioning properly and performed surgery to correct the problem. For the next several years, Darwin experienced no problems with his shunt.

On the morning of August 17, 1988, Darwin was with his father when he began complaining that he had a headache. Darwin's father gave him Tylenol and later testified that it was not unusual for Darwin to have headaches and that Tylenol normally cured the problem. On this day, however, the Tylenol did not work, and Darwin continued to complain of a headache. Later that day, Darwin felt nauseous, began vomiting, and refused to eat. His father continued to give him Tylenol, but Darwin's condition did not improve.

The next morning, August 18, 1988, Darwin was still complaining that he had a headache. In addition, Darwin appeared drowsy and was still refusing to eat. Darwin's father gave him another dose of Tylenol but this again failed to relieve the child's symptoms. At this point, Darwin's father became very concerned and decided to take his son to the emergency room at nearby North Arundel Hospital, located in Anne Arundel County.

Darwin and his father arrived at the hospital at 11:05 a.m. Dr. Fields, the oncall physician in the emergency room, examined Darwin at 1:00 p.m. At that time, Darwin was complaining of a severe headache. Dr. Fields ordered several laboratory tests, including an emergency CT scan. Darwin was also given Vicodin, a prescription pain killer.

Darwin's CT scan was reviewed by Dr. Axelbaum, a radiologist at NAH. Dr. Axelbaum noted the presence of shunts in Darwin's brain as well as a number of other abnormalities, but he interpreted these results as all old changes. Dr. David Buchholz, appellants' medical expert, later opined at trial that Dr. Axelbaum breached the standard of care when he reported that the changes were all old while failing to report to Dr. Fields that there was a possibility that the results could represent new change or a blocked shunt.

Dr. Fields contacted Dr. Mody, the neurologist on-call at the hospital. Dr. Mody advised that Darwin could be released once his headache was relieved. It is unclear when Dr. Axelbaum placed his written findings in Darwin's emergency room ("ER") chart. Dr. Buchholz later testified that if Dr. Axelbaum's findings were not in the ER chart when Dr. Fields spoke with Dr. Mody, then neither Dr. Fields nor Dr Mody breached the standard of care. If Dr. Axelbaum's findings were in the chart and Dr. Fields read it to Dr. Mody, then Dr. Fields also complied with the standard of care, according to Dr. Buchholz. Dr. Buchholz said, however, that if Dr. Axelbaum's notations were on the chart and Dr. Fields failed to read them to Dr. Mody in their entirety, then Dr. Fields would have breached the standard of care. Dr. Buchholz could not say which of these three scenarios actually occurred.

At 2:45 p.m., Darwin's headache was gone, and he was able to tolerate fluids. Dr. Fields consulted with Dr. Lee, Darwin's primary care pediatrician, who...