Hetrick v. Weimer, 1090

• Decision Date: 01 September 1985
• Docket Number: No. 1090,1090
• Citation: 67 Md.App. 522,508 A.2d 522
• Parties: Jody Ann HETRICK, et al. v. Stanley R. WEIMER, et al. ,
• Court: Court of Special Appeals of Maryland

Page 522

67 Md.App. 522

508 A.2d 522

Jody Ann HETRICK, et al. v. Stanley R. WEIMER, et al.

No. 1090, Sept. Term, 1985.

Court of Special Appeals of Maryland.

May 14, 1986.

Gilbert H. Robinette (Henry E. Dugan, Jr. and Robinette, Dugan, Seiden & Fleming, P.A., on brief), Baltimore, for appellants.

David R. Thompson (Roy B. Cowdrey, Jr. and Franch, Earnest & Cowdrey, P.A., on brief), Easton, for appellee, Weimer.

John H. Bolgiano (Smith, Somerville & Case, on brief), Baltimore, for appellee, Anne Arundel General Hosp.

Argued before ALPERT, BLOOM and ROBERT M. BELL, JJ.

BLOOM, Judge.

Jason Michael Hetrick, a premature baby delivered by caesarean section, died shortly after birth. As a result of the infant's death, his parents, Jody Ann Hetrick and Michael Cary Hetrick, sought to recover damages from various health care providers, including appellees, Dr. Stanley R. Weimer and Anne Arundel General Hospital. They were unsuccessful both at the Health Claims Arbitration level and at trial before a jury in the Circuit Court for Anne Arundel County. Appealing from the judgment of the circuit court, Mr. and Mrs. Hetrick make several assertions of error. Although he won below, Dr. Weimer cross-appealed in order to preserve an assertion of error in the event of reversal and retrial.

We find error in the instructions to the jury and reverse for that reason; we find no error in the court's ruling from which the cross-appeal was taken.

Background

Jody Ann Hetrick was admitted to Anne Arundel General Hospital on September 2, 1978, suffering from nausea, vomiting, abdominal pain, and several other symptoms. She was in her thirty-first or thirty-second week of pregnancy. She was under the care of Dr. Thomas E. Moeser, her obstetrician, and his associate, Dr. John S. Harris. Dr Moeser concluded that Mrs. Hetrick was suffering from gastroenteritis and possible cholecystitus. An exploratory operation was performed, under general anesthesia, on the morning of September 9, 1978, during which it was discovered that Mrs. Hetrick's gall bladder was normal but her liver was edemic, indicating severe preeclampsia ¹ which had gone undiagnosed by Dr. Moeser for a week or more.

Mrs. Hetrick and her husband, Michael, were informed of Mrs. Hetrick's condition. The most common treatment for preeclampsia, apparently, is to deliver the child, even though the child will be premature. Mrs. Hetrick agreed to undergo a caesarean section immediately. On the evening of the same day on which the laparotomy was performed, Jason was delivered, eight to nine weeks prematurely, by caesarean section. He weighed 1531 grams.

Mrs. Hetrick met appellee Dr. Weimer, a pediatrician and neonatologist, for the first time in the operating room immediately before the delivery. Mrs. Hetrick testified that he introduced himself and said, "I'm here for the baby." Mrs. Hetrick also testified that she was not aware that Dr. Weimer had been called in by her own doctors.

Jason was born in an extremely poor condition. He was immediately put under the care of Dr. Weimer, who tried various methods to improve the baby's cardiopulmonary responses and blood sugar level for the next eight to ten hours. Alleged inadequacy of those measures formed the basis of the negligence action below. Several hours after birth, Jason was transferred to the neonatal intensive care unit at Saint Agnes Hospital in Baltimore to be placed under the care of Dr. Giangreco, another neonatologist. Jason died not long thereafter.

On August 21, 1982, the Hetricks filed a claim with the Health Claims Arbitration Office (HCAO) as the parents of Jason. Jody also filed as the personal representative of Jason's estate. The claim was filed against Drs. Moeser, Harris, and Weimer, Anne Arundel General Hospital, and Saint Agnes Hospital. On December 1, 1982, the Hetricks released Dr. Moeser for the consideration of $100,000, executing a Joint Tortfeasor Release. Their claim against Dr. Moeser was dismissed the same day. Two days later, third party claims were filed against Dr. Moeser by Dr. Harris, Dr. Weimer, and Anne Arundel General Hospital.

An arbitration panel of the HCAO issued its determination on May 18, 1983. The panel found "no liability on part of [sic] ... St. Agnes Hospital, Anne Arundel General Hospital, Stanley R. Weimer, M.D., and John S. Harris, M.D., or against anyone other than Thomas E. Moeser, M.D." The panel awarded damages of $125,000.

Because of their release of Dr. Moeser, the Hetricks clearly did not benefit from the panel's determination. On May 27, 1983, they filed a notice of rejection of the panel's decision and a declaration and election for jury trial in the Circuit Court for Anne Arundel County, suing Dr. Weimer, Dr. Harris, and Anne Arundel General Hospital for negligence. On the same day the Hetricks filed two other pleadings, one captioned "Action to Nullify Award" and the other a preliminary motion to vacate the award. Dr. Moeser also filed a motion to vacate the award as to him.

In July of 1983, Dr. Weimer, Dr. Harris, and Anne Arundel General Hospital each filed a general issue plea to the declaration and a third party claim against Dr. Moeser.

On November 3, 1983, Dr. Moeser's motion to vacate the panel's award against him was granted on the basis that, due to the Hetricks' release, the panel had no jurisdiction over Dr. Moeser unless the third party plaintiffs were found liable. Since no one other than Dr. Moeser was held liable the court granted his motion to vacate. The court denied the Hetricks' motion to vacate the award in toto.

On February 13, 1984, the Hetricks released Dr. Harris in return for approximately $2100. They dismissed their suit against Dr. Harris on February 21, 1984, the first day of trial. The remaining defendants unsuccessfully sought a continuance, complaining that the release was secret and that it deprived them of the use of Dr. Harris as a witness.

Trial commenced before a jury on February 21, 1984. Testifying as an expert witness in neonatology on behalf of the Hetricks was Dr. Kenneth Harkavy. During direct examination, Dr. Harkavy gave his opinion as to the cause of Jason's death. He said:

Based on the review of all three sets of records, the underlying cause [of Jason's death] is that of perinatal asphyxia which begins around the time of birth and continued after delivery, compounded by prematurity and hyaline membrane disease. The prematurity in itself prevented the baby from successfully recovering from his difficulties at birth in respiring insufficiency.

Dr. Harkavy also said that "[t]he lack of adequate resuscitation I think allowed the asphyxia or lack of oxygen, the buildup of acidosis to continue after birth." He concluded that "what we're seeing is that the asphyxia continues and as we've already talked about, I think it's because the baby was not adequately ventilated." ²

At the close of the Hetricks' case, Dr. Weimer and Anne Arundel General Hospital each moved for a directed verdict. The court denied Dr. Weimer's motion but granted the hospital's motion on the grounds that there was no evidence that Dr. Weimer was its agent and insufficient evidence that the hospital's nurse was negligent. The jury returned a verdict in favor of Dr. Weimer.

Issues

On appeal, the Hetricks contend that the trial court erred in denying their preliminary motion to vacate the panel's award, that the court erred in granting Anne Arundel General Hospital's motion for a directed verdict, and that the court committed three errors in instructing the jury. In his cross-appeal, Dr. Weimer argues that the court erred in not permitting him to read in court the deposition testimony of an out-of-state doctor and in striking the transcript from evidence.

I. Motion to Vacate

Appellants' first contention is that the court below erred in denying their preliminary motion to vacate the award of the panel. We find no error.

In accordance with Md.Cts. & Jud.Proc.Code Ann. § 3-2A-06(b) (1984), appellants filed a written motion to vacate the award of the panel on the grounds that, inter alia, the panel found against Dr. Moeser, who had already been dismissed by virtue of the agreement reached between the doctor and appellants. Appellants also contended that the panel improperly permitted the filing of third party claims which brought Dr. Moeser back into the controversy.

By a written opinion and order dated November 3, 1983, the court denied appellants' motion, ruling as follows:

The claimant also argues that the result of the Panel shows such confusion as to vacate the award. We have already vacated the award against Dr. Moeser. The remainder of this decision makes it clear that the Panel found no negligence on behalf of anyone else. Plaintiff tells us that the Panel wanted to give Plaintiffs some award; it did, but obviously only against Dr. Moeser. If the Panel had found only Dr. Moeser liable, then announced that he had been released, we would let the finding stand. Since we hold the award against Dr. Moeser as surplusage at this point, we allow it to stand.

On appeal, the Hetricks argue that the panel was "either incompetent or totally confused" and that the award was completely irrational. They rely on O-S Corporation v. Samuel A. Kroll, Incorporated, 29 Md.App. 406, 348 A.2d 870 (1975), cert. denied, 277 Md. 740 (1976), which they contend states that an arbitration award may be set aside if it is completely irrational. O-S Corp. narrowly dealt with an arbitrator's interpretation of a construction contract, but it does express the generally accepted rule that a completely irrational arbitration award may be vacated by a court, because in making such an award arbitrators would be exceeding their powers and employing undue means, two of the limited grounds upon which a court may vacate an arbitration award. Md.Cts. & Jud.Proc.Code Ann. § 3-224(b) (1984). ³ The award in this case, however, clearly does not fall into the category...