Jacobs v. Flynn

Decision Date25 February 2000
Docket NumberNo. 5893,5893
PartiesLisa JACOBS & Sheila Jacobs, Personal Representatives of the Estate of Leo M. Jacobs v. Meade FLYNN, et al.
CourtCourt of Special Appeals of Maryland

Randell C. Ogg (Matthew P. Maloney and Sherman, Meehan, Curtin & Ain, P.C., on the brief), Washington, DC, for appellants.

Michael K. Wiggins (Andrew E. Vernick and Wharton, Levin, Ehrmantraut, Klein & Nash, on the brief), Annapolis, for appellee, Flynn.

Gary R. Jones (Thomas F. Corcoran and Baxter, Baker, Sidle & Conn, P.A., on the

brief), Baltimore, for appellee, Howard County General.

Craig B. Merkle (Goodell, DeVries, Leech & Gray, LLP, on the brief), Baltimore, for appellee, McCormack.

Donna P. Sturtz (Steven F. Barley and Miles & Stockbridge, P.C., on the brief), Baltimore, for appellees, Kishel, M.D., Applestein, M.D., MacLean, M.D., etc.

Argued before WENNER, ADKINS and JAMES T. SMITH, Jr. (Specially Assigned), JJ. ADKINS, Judge.

This medical malpractice case revolves around the events that led to the paralysis of Leo M. Jacobs,1 appellant/cross appellee. Mr. Jacobs brought a negligence suit against: appellees/cross appellants, Dr. Thomas MacLean, MacLean, Applestein & Kishel, M.D., P.A.; appellees, Drs. John Kishel, Marc Applestein, Meade Flynn, Gregory McCormack, and Howard County General Hospital ("HCGH"); and Dr. Jerry Seals.2 Dr. Seals settled the claim against him before trial and a trial by jury proceeded against the remaining defendants. The jury returned a verdict in favor of Mr. Jacobs against Dr. MacLean, MacLean, Applestein & Kishel, M.D., P.A. and Dr. Flynn only, and awarded Mr. Jacobs $1,240,000. The trial judge later directed a verdict in favor of Dr. Flynn based on the applicable statute of limitations and reduced the judgment against Dr. MacLean to $620,000 based on the settlement with Dr. Seals and the application of the Maryland Contribution Among Joint Tort-Feasors Act. Both Mr. Jacobs and Dr. MacLean have raised a number of issues on appeal:

I. Whether the trial court erred in denying motion for judgment and motion for judgment not withstanding the verdict filed by Dr. MacLean and MacLean, Applestein & Kishel, M.D., P.A.?

II. Whether the trial court erred in ruling, as a matter of law, that Mr. Jacobs's claim against Dr. Flynn was barred by the statute of limitations?

III. Whether the trial court erred in reducing the judgment against Dr. MacLean by one half pursuant to the Maryland Contribution Among Joint Tort-Feasors Act?

IV. Whether the trial court erred by refusing to admit certain medical records?

V. Whether the trial court erroneously instructed the jury on apparent agency?

FACTS

Mr. Jacobs had been deaf and mute since birth. Despite his disability, he had an active lifestyle and worked for the deaf community. In February of 1991, Mr. Jacobs was vacationing in California. When he arrived in California, he began to experience severe back pain and a fever. On February 2, Mr. Jacobs checked into Washington Hospital in Freemont, California. He was hospitalized for approximately nine days in California and treated for back pain and fever. While in the hospital, Mr. Jacobs received treatment from Dr. Ahmed Sadiq, a specialist in oncology, and Dr. Muni Barash, a specialist in infectious diseases. Mr. Jacobs testified that he told these doctors that he was experiencing pain in the middle of his back. These doctors told Mr. Jacobs that his back pain was caused by metastatic prostate cancer. After being discharged from the hospital on February 11, Mr. Jacobs remained in California and continued to receive treatment for his back pain from various health care providers. Mr. Jacobs returned to his home in Laurel, Maryland, on February 22, 1991.

On February 25, 1991, Mr. Jacobs went to see Dr. MacLean. Dr. MacLean was a urologist who had previously treated Mr. Jacobs for prostate related problems. Dr. MacLean immediately admitted Mr. Jacobs to HCGH in order to evaluate the cancer diagnosis. That day, Dr. MacLean ordered a blood test and a lumbosacral (lower back) spine x-ray. Dr. MacLean testified that he did not order an x-ray for the middle of Mr. Jacobs's back because Mr. Jacobs did not inform him that he was experiencing pain in that region.

Dr. MacLean testified that he had to leave town on February 26 for personal reasons. At this point, Dr. MacLean turned over Mr. Jacobs's case to his partners, Drs. Applestein and Kishel, both urologists.

Dr. Applestein testified that he began treating Mr. Jacobs on February 27 and that he called Dr. Sadiq in California and Dr. Sadiq told him that he believed that Mr. Jacobs did not have cancer. At this point, Dr. Applestein believed that Mr. Jacobs's back pain might be caused by an infection rather than cancer. Accordingly, Dr. Applestein called Dr. Seals, an infectious disease specialist. Dr. Seals ordered that a number of tests be done on Mr. Jacobs, including a bone scan, in order to investigate the probability of osteomyelitis, "which can also give birth to the epidural abscess." At the same time, Drs. Applestein and Kishel, who examined Mr. Jacobs on February 28, continued to investigate possible urological causes for Mr. Jacobs's pain.

By March 2, 1991, based on various tests, Drs. Applestein and Kishel ruled out urological causes for the back pain. Dr. Flynn interpreted the bone scan as normal. At this point, Dr. Seals continued his treatment of Mr. Jacobs and called in a rheumatologist,3 Dr. McCormack, to investigate whether Mr. Jacobs's pain was caused by a more chronic problem.

Dr. MacLean again became involved with Mr. Jacobs's care on March 4, 1991. At Dr. McCormack's suggestion, Dr. MacLean ordered an MRI scan of Mr. Jacobs's lower back. The MRI was not ordered on a "stat" basis. As a result, the MRI scan was not performed until March 6 and no doctor inquired as to the MRI results until March 7.

Mr. Jacobs's condition worsened on March 5. On March 7, when Mr. Jacobs reported problems with leg weakness, Drs. McCormack and Seals ordered a neurological consult. Subsequently, Mr. Jacobs was transferred to the University of Maryland Hospital. At the University of Maryland Hospital, Mr. Jacobs was diagnosed with an epidural abscess, a pocket of pus or inflammation outside of the spinal cord. The infection from the abscess caused Mr. Jacobs to become permanently paralyzed from the mid-waist level down. Mr. Jacobs required hospitalization for five months and then spent another seventeen months in an assisted living environment. He died from apparently unrelated causes in December 1998.

DISCUSSION
I.

The trial court properly denied Dr. MacLean's motion for judgment and judgment not withstanding the verdict.

A party is entitled to a judgment not withstanding the verdict (JNOV) when the evidence at the close of the case, taken in the light most favorable to the nonmoving party, does not legally support the nonmoving party's claim or defense. See Bartholomee v. Casey, 103 Md.App. 34, 51, 651 A.2d 908 (1994),

cert. denied, 338 Md. 557, 659 A.2d 1293 (1995). In reviewing the denial of a JNOV, we "`must resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiff's right to recover....'" Houston v. Safeway Stores, Inc., 346 Md. 503, 521, 697 A.2d 851 (1997) (quoting Smith v. Bernfeld, 226 Md. 400, 405, 174 A.2d 53 (1961)). If the record discloses any legally relevant and competent evidence, however slight, from which the jury could rationally find as it did, we must affirm the denial of the motion. See Franklin v. Gupta, 81 Md.App. 345, 354, 567 A.2d 524,

cert. denied, 319 Md. 303, 572 A.2d 182 (1990). If the evidence, however, does not rise above speculation, hypothesis, and conjecture, and does not lead to the jury's conclusion with reasonable certainty, then the denial of the JNOV was error. See Bartholomee, 103 Md.App. at 51,

651 A.2d 908. Nevertheless, "[o]nly where reasonable minds cannot differ in the conclusions to be drawn from the evidence, after it has been viewed in the light most favorable to the plaintiff, does the issue in question become one of law for the court and not of fact for the jury." Pickett v. Haislip, 73 Md.App. 89, 98, 533 A.2d 287 (1987),

cert. denied, 311 Md. 719, 537 A.2d 273 (1988).

Dr. MacLean contends that the trial court erred in denying his motion for judgment and JNOV because the evidence presented at trial was not legally sufficient to establish that his negligence was the proximate cause of Mr. Jacobs's paraplegia. Specifically, Dr. MacLean asserts that the testimony of the plaintiff's expert witnesses, Drs. David Andrews and Jack Kaufman, and the testimony of the opposition's expert witness, Dr. Bruce Ammerman, did not establish to a reasonable degree of medical probability that different conduct by Dr. MacLean would have prevented Mr. Jacobs's paraplegia.

In order to establish a prima facie case of medical negligence, a plaintiff must establish: (1) the applicable standard of care; (2) that this standard has been violated; and (3) that this violation caused the complained of harm. See Weimer v. Hetrick, 309 Md. 536, 553, 525 A.2d 643 (1987)

(quoting Waffen v. U.S. Dep't of Health & Human Servs., 799 F.2d 911, 915 (4 th Cir. 1986)).

As with other cases, in order to prove causation, a medical malpractice plaintiff must establish that but for the negligence of the defendant, the injury would not have occurred. See Suburban Hosp. Ass'n, Inc. v. Mewhinney, 230 Md. 480, 484-85, 187 A.2d 671 (1963)

. Because of the complex nature of medical malpractice cases, expert testimony is normally required to establish breach of the standard of care and causation. See Meda v. Brown, 318 Md. 418, 428, 569 A.2d 202 (1990). Generally, we have required expert opinions...

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