Hunt v. Mercy Medical Center

• Decision Date: 01 September 1997
• Docket Number: No. 1476,1476
• Citation: 710 A.2d 362,121 Md.App. 516
• Parties: Carol Sue HUNT, Personal Representative of the Estate of Charles Dell'uomo v. MERCY MEDICAL CENTER, et al. ,
• Court: Court of Special Appeals of Maryland

Page 516

121 Md.App. 516

710 A.2d 362

Carol Sue HUNT, Personal Representative of the Estate of Charles Dell'uomo v. MERCY MEDICAL CENTER, et al.

No. 1476, Sept. Term, 1997.

Court of Special Appeals of Maryland.

May 29, 1998.

Marvin Ellin (Michael P. Smith and Ellin and Baker, on the brief), Baltimore, for appellant.

Peter E. Keith (Julie Ellen Squire and Gallagher, Evelius & Jones, L.L.P., on the brief), Baltimore, for appellee, Mercy.

Teri Kaufman Leonovich (Susan T. Preston and Goodell, DeVries, Leech & Gray, L.L.P., on the brief), Baltimore, for appellee, Fazekas.

Argued before MOYLAN, KENNEY and THIEME, JJ.

THIEME, Judge.

The issue presented in this case is whether emotional distress from being misdiagnosed with cancer is compensable within the physical injury rule. On the facts presented, we hasten to answer yes.

Charles Dell'uomo initiated a medical malpractice action before the Maryland Health Claims Arbitration Office after he was misdiagnosed as having prostate cancer and received several radiation treatments. He brought the action against four health care providers, including the present appellees, Victor A. Fazekas, M.D., and Mercy Medical Center. ¹ Mr. Dell'uomo died of essentially unrelated causes prior to the hearing before the arbitration panel. In his place was substituted the personal representative of his estate, appellant Carol Sue Hunt. The arbitration panel found no liability and issued an award in favor of all health care providers on 31 July 1996. On 13 August 1996, appellant notified the Arbitration Office that she rejected the award. She filed a complaint and an action to nullify the award in the Circuit Court for Baltimore City. She requested a jury trial. The other two health care providers besides appellees were dismissed from the case by stipulation on 22 October 1996. Dr. Fazekas filed a motion for dismissal or, in the alternative, summary judgment. Mercy Medical Center filed a motion for summary judgment. These motions were the subject of a hearing on 18 July 1997. The circuit court granted Dr. Fazekas's motion on the day of the hearing and granted Mercy Medical Center's motion on 4 August 1997. This appeal timely followed.

The issues presented for review are:

I. Whether appellant was required to prove the decedent's emotional injuries through expert testimony.

II. Whether Dr. Fazekas was an agent of Mercy Medical Center for purposes of liability.

As explained below, we must reverse as to each issue.

FACTS

Upon the advice of urologist Stanley B. Silber, M.D., Mr. Dell'uomo submitted to a biopsy of his prostate at Mercy Medical Center in Baltimore on 9 March 1995. At that time, Mr. Dell'uomo was seventy-eight years of age. The specimen was submitted to the pathology department at Mercy. On the next day Dr. Fazekas recorded his diagnosis that Mr. Dell'uomo was suffering from a form of cancer. ² On 15 March 1995, Mr. Dell'uomo returned to Dr. Silber's offices at Mercy, where Dr. Silber informed him that he had a relatively minor form of prostate cancer and that radiation treatment would be necessary.

Dr. Silber referred Mr. Dell'uomo to the Department of Radiation Oncology at Mercy for further consultation, and decisions were made to proceed with radiation treatment. On the 10th, 11th, and 17th of April, Mr. Dell'uomo met with radiation oncologists at Mercy to sign consent forms and to discuss his condition, the treatment, and the potential effects of each. The form signed on the 17th contained his acknowledgment:

That radiation therapy will have side effects which may occur during and immediately after treatment ("acute side effects") or later ("chronic" or "delayed" side effects), and which occur because radiation therapy affects normal tissue, and can damage normal tissues as well as cancerous tissues.

Among the acute side effects of the proposed treatment that have been described to me are: skin irritation; low blood counts; fatigue; urinary frequency; diarrhea; rectal irritation. Among the chronic side effects of the proposed treatment that have been described to me are: damage to bowel or bladder. I understand that no list of possible complications can be complete.

Mr. Dell'uomo was to be exposed to the radiation over approximately thirty-two separately administered treatments.

Radiation treatment began on April 17th. Fifteen separate radiation treatments were administered over the following three weeks before the misdiagnosis was discovered and communicated to Mr. Dell'uomo on May 8th. Left with hagridden doubts about what to believe, Mr. Dell'uomo sought the advice of Horst K.A. Schirmer, M.D., another urologist. At a meeting on May 15th, Dr. Schirmer informed Mr. Dell'uomo that the total amount of radiation administered was small enough that he was unlikely to suffer any side effects related to it. He also advised Mr. Dell'uomo to have another biopsy performed to confirm the negative diagnosis. Although frustrated, Mr. Dell'uomo did reluctantly submit to another biopsy. The result confirmed that he did not have prostate cancer.

Mr. Dell'uomo died in the spring of 1996 of causes that are not revealed in the record extract and are concededly not relevant to this appeal. Appellant then substituted for Mr. Dell'uomo in her capacity as personal representative of his estate. At the arbitration hearing, appellant described her relationship to the deceased as "Companion."

Dr. Fazekas admitted his breach of the applicable standard of care in proceedings before the arbitration panel. The panel, nonetheless, ruled in favor of all the health care providers for reasons that are not reflected in the record extract. Before the circuit court, both appellees filed dispositive pre-trial motions. Dr. Fazekas moved for dismissal or, in the alternative, for summary judgment. Dr. Fazekas argued that Mr. Dell'uomo suffered no compensable injury under the "physical injury" rule and that appellant failed to arbitrate in good faith by presenting no expert medical testimony. Mercy Medical Center made a motion for summary judgment on these two grounds plus the additional ground that it was not vicariously liable for Dr. Fazekas's alleged medical malpractice. The focus of oral arguments, presented at a hearing on 18 July 1997, was the need for expert testimony and the meaning of "good faith" arbitration. Dr. Fazekas's and Mercy Medical Center's motions for summary judgment were granted by orders that did not specify their particular rationales. Further facts will be added where appropriate for our discussion.

DISCUSSION

I. Expert testimony.

In reviewing a grant of summary judgment, we generally do not consider any issues but those decided below and will not affirm on any alternate grounds. Henley v. Prince George's County, 305 Md. 320, 333, 503 A.2d 1333 (1986). This presents the question of what issues actually were decided below and, hence, what issues are now before us. Appellant frames the issue before us as whether expert testimony was required in order to prove the decedent's emotional injuries. Mercy Medical Center and Dr. Fazekas each argue in favor of affirming the lower court based on this same issue and on the additional grounds that the deceased suffered no cognizable physical injury and that appellant's failure to present expert testimony constituted a failure to arbitrate in good faith. All three of these issues were presented to the court below, but the court's orders, lacking its reasoning, are non-specific. The transcript of the hearing before the circuit court, however, reveals the court found that appellant's failure to present expert testimony constituted a failure to arbitrate in good faith. Since this ruling is premised upon the necessity to present expert testimony, and since expert testimony would be a moot point unless the injuries it pertains to are cognizable, we consider all three issues to be properly before us.

-cognizability-

Although appellant may once have claimed the right to recover for both physical and emotional injuries arising from the negligent misdiagnosis, appellant is arguing only in support of damages for Mr. Dell'uomo's emotional injuries. Any claims for damages from purely physical injuries resulting from the misdiagnosis are waived.

Within the field of negligence law, the rule in Maryland is that any "physical injury" is compensable if that injury is "capable of objective determination." Belcher v. T. Rowe Price Found., Inc., 329 Md. 709, 734, 621 A.2d 872 (1993) (quoting Vance v. Vance, 286 Md. 490, 500, 408 A.2d 728 (1979)). The adoption and development of this rule is recounted in detail both in Belcher, 329 Md. at 722-36, 621 A.2d 872, and in Vance, 286 Md. at 495-501, 408 A.2d 728. In brief, the Court of Appeals in 1909 rejected the traditional rule that there could be no recovery absent a "physical impact " and adopted the "modern rule" permitting recovery for any "physical injury " arising out of the defendant's negligence, regardless of physical impact. Green v. Shoemaker, 111 Md. 69, 83, 73 A. 688 (1909). In the context of this rule, however, the term "physical" carries a meaning that may differ from the common understanding or the dictionary definition of the term. Vance, 286 Md. at 500, 408 A.2d 728. A compensable "physical injury" may be demonstrated simply by evidence of a distressed mental state. Id. Therefore, although we may casually characterize a purported injury as being either physical or emotional in nature (as we will in our ensuing discussion), the distinction is merely descriptive and not of legal significance. The doctrinally correct position is that an emotional injury (such as mental anguish or emotional distress) may come within the ambit of the "physical injury" rule by virtue of its outward manifestations. ³ The only limitation on recovery for an emotional injury, imposed to guard against feigned claims, is that the injury must be "capable of objective determination." ⁴ Id.

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