Hans v. Franklin Square Hospital, 263

• Decision Date: 03 December 1975
• Docket Number: No. 263,263
• Citation: 347 A.2d 905,29 Md.App. 329
• Parties: Theodore F. HANS et ux. v. FRANKLIN SQUARE HOSPITAL et al.
• Court: Court of Special Appeals of Maryland

Page 329

29 Md.App. 329

347 A.2d 905

Theodore F. HANS et ux. v. FRANKLIN SQUARE HOSPITAL et al.

No. 263.

Court of Special Appeals of Maryland.

Dec. 3, 1975.

Certiorari Denied Feb. 3, 1976.

Marvin Ellin, Baltimore, and Jon W. Brassel, Annapolis, for appellants.

Robert H. Bouse, Jr., Baltimore, with whom were Anderson, Coe & King, Baltimore, on the brief, for appellee Sindelar.

E. Gwinn Miller, Rockville, with whom were Donahue & Ehrmantraut, Rockville, on the brief, for appellee Koh.

Argued before ORTH, C. J., and DAVIDSON and LOWE, JJ.

LOWE, Judge.

Most evidentiary presumptions, or permissible inferences, when traced to their inception are nothing more than reasonable conclusions that may (or must) be drawn from circumstances. For example, the doctrine with the frightening epithet res ipsa loquitur ¹-the thing speaks for itself-is nothing more than an inference or presumption from the facts of a case that a defendant's act caused the injury. Where the instrumentality causing injury is shown to be under the control of a defendant and the injury is such that, in the ordinary course of events, it would not have happened if those in control of the instrumentality had used proper care, the doctrine of res ipsa may be a substitute for hard evidence sufficient to permit a jury to decide the question of negligence. Cf. Weilbacher v. Putts Co., 123 Md. 249, 265-266, 91 A. 343.

In the opinion of David M. Harney, expressed in his text Medical Malpractice, '. . . nowhere is the doctrine (of res ipsa loquitur) needed more than in the malpractice action.' He explains his reasoning for that conclusion:

'One of the most pervasive legal problems in these cases is the issue of causation. Did the physician's (or hospital's) act or failure to act really cause the injury? Often the facts which reveal professional negligence will not establish the requisite legal cause. Because the practice of medicine is itself the application of an inexact science, the proving of medical malpractice, causing untoward results, is by necessity also inexact. The doctrine of res ipsa loquitur facilitates such proof.' Harney, Medical Malpractice, See. 4.3, p. 173.

A classic example of the application of this doctrine in the medical malpractice field is the California case of Ybarra v Spangard, 25 Cal.2d 486, 154 P.2d 687. There, the plaintiff underwent an appendectomy and awoke from anesthesia with a severe continuous pain between neck and shoulder. He had no evidence of how, or by whom, the pain was caused; only that it was of traumatic origin and that he did not have it when he entered the operating room, but did have it immediately upon awakening. The gravamen of the action was that the injury was sustained in a part of the body not directly involved in the surgical procedure. ² The California court held that such a case comes more fully within the reason and spirit of res ipsa loquitur than any other:

'. . . it is difficult to see how the doctrine can, with any justification, be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used in his treatment. Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone's negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability. . . .' Id. at 490, 154 P.2d at 689.

Similarly, in the State of Washington res ipsa loquitur was found applicable where a woman patient undergoing a hysterectomy suffered paralysis of her arm due to a brachial plexus injury. Horner v. Northern Pac. Etc. Hosp., 62 Wash.2d 351, 382 P.2d 518.

Theodore F. Hans, an appellant here, was not so fortunate. He too entered the hospital for an operation on his lower anatomy (a hemorrhoidectomy) and awoke to full consciousness with his right arm and hand paralyzed from '. . . ulnar nerve palsy-probably due to (operating) table position with arm up over head.' ³ Although Judge Paul A. Dorf permitted a jury of the Baltimore City Court to consider the case, when the jurors failed to agree, the judge granted judgment n. o. v. rather than a new trial. Since he found that no express evidence had been produced by appellant to show that appellees (or either of them) were negligent, his ruling was correct in light of the present state of medical malpractice law in Maryland.

In Bettigole v. Diener, 210 Md. 537, 541, 124 A.2d 265, 267, an action for an injury to a facial nerve during a mastoidectomy causing paralysis to one side of the plaintiff's face, ⁴ the Court said:

It is clear under the Maryland authorities that in an action for malpractice the burden of proof is upon the plaintiff to show a want of proper knowledge and skill. . . . The doctrine of res ipsa loquitur does not apply.'

Later, in Lane v. Calvert, 215 Md. 457, 462-463, 138 A.2d 902, 905, where it was contended that a doctor was guilty of improper postoperative treatment, Chief Judge Brune said for the Court:

'It is well established by the case law in this State that the mere fact that an unsuccessful result follows medical treatment is not of itself evidence of negligence. . . . Nor does the doctrine of res ipsa loquitur apply.'

The Court's rejection of res ipsa loquitur in medical malpractice cases emanates from State, use of Janney v. Housekeeper and Gifford, 70 Md. 162, 171, 16 A. 382, 384, where the Court said:

'It was the duty of the professional men to exercise ordinary care and skill, and, this being a duty imposed by law, it will be presumed that the operation was carefully and skillfully performed, in the absence of proof to the contrary. As all persons are presumed to have duly performed any duty imposed on them, negligence cannot be presumed, but must be affirmatively proved. . . .

This principle is especially applicable in suits against physicians and surgeons for injuries sustained by reason of alleged unskillful and careless treatment. The burden of proof is on the plaintiff to show a want of proper knowledge and skill.'

Those general principles of negligence law which the Court found to be 'especially applicable against physicians and surgeons' were repeated over the years in Dashiell v. Griffith, 84 Md. 363, 35 A. 1094; in Miller v. Leib, 109 Md. 414, 72 A. 466, etc. Finally, in Streett v. Hodgson, 139 Md. 137, 115 A. 27, the Court was called upon to decide 'whether the maxim, res ipsa loquitur, applies' to a suit for injury from the negligent use of an X ray machine. Judge Adkins wrote for the Court that:

'The reasoning of the courts which hold that the maxim does not apply in such cases seems more in consonance with the principles governing the relations generally between physicians and patients as announced by this Court in numerous cases. See State, use of Janney, v. Housekeeper, 70 Md. (162) 171, 16 A. 382; Dashiell v. Griffith, 84 Md. (363) 380, 35 A. 1094, 2 L.R.A. 587, 14 Am.St.Rep. 340; Miller v. Leib, 109 Md. 414, 72 A. 466. At any rate, in the absence of evidence from which, without speculating, the jury could draw a reasonable inference from the mere happening of such an accident, it should not be permitted to infer negligence from the occurrence alone.' (Emphasis added). Streett v. Hodgson, 139 Md. at 149, 115 A. at 30.

Later cases ⁵ add but little to our enlightenment although Angulo v. Hallar, 137 Md. 227, 233, 112 A. 179, 181, includes in the burden placed upon a plaintiff in a malpractice case,

'. . . the necessity of showing that the professional acts of the defendant, which are alleged to have produced the injury complained of, did, in fact, cause such injury.'

If Judge Adkins' phraseology in Streett left us with any doubt ⁶ whether there might be such shocking evidence of injury from which a jury could infer negligence from the occurrence alone ('without speculating') the added weight of Angulo closed the door. See also State v. Eye, Ear, Etc., Hospital, 177 Md. 517, 526-527, 10 A.2d 612.

Maryland is clearly among the more substantial number of states having rejected the doctrine of res ipsa loquitur in actions against physicians and allied health personnel, rather than among those who have accepted the doctrine. See generally Anno, 'Physicians and surgeons: res ipsa loquitur, or presumption or inference of negligence, in malpractice cases,' 82 A.L.R.2d 1262. Whatever the merits of the application of res ipsa loquitur to the facts in this case, it is beyond our authority to decide contrary to clearly established law set forth by the Court of Appeals. We are bound by stare decisis. The Court of Appeals, however, is not so bound. In Hearst Corp. v. St. Dep't. of A. and T., 269 Md. 625, 308 A.2d 679, the Court of Appeals repeated its language in White v. King, 244 Md. 348, 223 A.2d 763:

"The doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life." Hearst Corp., 269 Md. at 643-644, 308 A.2d at 689.

That prerogative to change its mind was not extended to us. Therefore, being bound by the repeated refusal to apply the doctrine of res ipsa loquitur to medical malpractice cases, we are limited to reviewing the evidence in the eight hundred page transcript to determine whether there is a sufficient 'showing that the (appellees') failure to observe the proper standard was a direct cause of the injuries about which (appellant) complains in the malpractice action.' Dunham v. Elder, 18 Md.App. 360, 363, 306 A.2d 568, 570.

In reviewing the lower court's ruling upon motion for judgment n. o. v., the Court must resolve all conflicts in favor of the non-moving party (appellants) and must assume the truth of all evidence and...