Johns Hopkins Hosp. v. Pepper

• Decision Date: 01 September 1996
• Docket Number: No. 108,108
• Citation: 346 Md. 679,697 A.2d 1358
• Parties: The JOHNS HOPKINS HOSPITAL v. Travis PEPPER, et al. ,
• Court: Maryland Court of Appeals

Page 679

346 Md. 679

697 A.2d 1358

The JOHNS HOPKINS HOSPITAL v. Travis PEPPER, et al.

No. 108, Sept. Term, 1996.

Court of Appeals of Maryland.

Aug. 22, 1997.

Joseph G. Finnerty, Jr. (William L. Reynolds, Tracey Gann Turner, Piper & Marbury; Richard P. Kidwell, of counsel), Baltimore, for Petitioner.

Howard A. Janet (Janet, Willoughby & Gershon, L.L.C.; Joanne L. Suder, C. Holly Buckley, T. Christine Pham, Suder & Suder, P.A., on brief), Baltimore, for Respondent.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI and RAKER, JJ., and MURPHY, Judge (retired), Specially Assigned.

KARWACKI, Judge.

This medical malpractice action requires us to apply our holding in Garay v. Overholtzer, 332 Md. 339, 631 A.2d 429 (1993). In Garay, we concluded that a negligently-injured minor child may make a claim for medical expenses in his or her own name if, inter alia, the parents of the child are unable to meet those expenses. We are specifically asked whether the minor plaintiff in the case sub judice made a sufficient proffer of evidence to have the jury consider his claim for pre-majority medical expenses. Being convinced that he did, we shall affirm the judgment of the Court of Special Appeals.

I.

Travis Pepper was born on January 6, 1987, at Easton Memorial Hospital suffering from certain genetic disorders which manifested themselves, in part, in a condition medically described as "Tetralogy of Fallot" with pulmonary atresia. In laymen's terms, Travis suffered at birth from both heart and lung abnormalities. During formation, his heart developed a septal defect allowing blood to flow between the right and left ventricles. Compounding the problem was a portal restriction between Travis's heart and pulmonary artery. Both conditions conspired to send unoxygenated blood to Travis's aorta. See generally MERK MANUAL OF DIAGNOSIS AND THERAPY, Ch. 190, 2059 (Robert Berkow, M.D., et al., eds.1992); DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 156 (28th Ed.1994).

The physicians attending Travis determined that the appropriate course of action was to transport him to Johns Hopkins Hospital ("Hopkins"). Hopkins surgeons concluded that Travis's condition would be treated best by two separate surgical procedures--the first to correct the blood flow problem between his heart and pulmonary artery and the second to repair the hole in his ventricular septum. In April of 1987, four-month-old Travis underwent the first of the proposed operations.

Travis's surgery met with post-operative complications, ultimately leading to cardiac arrest. Though doctors were able to revive Travis, severe neurological impairment followed from the resultant oxygen deprivation. The second proposed corrective procedure was never performed. Approximately eight months later, Travis's parents contacted an attorney who solicited from Hopkins all hospital records relating to Travis's surgery. A subsequent four year period of silence followed from the Peppers. That silence was broken when Terry and Linda Pepper ¹ and Travis, through his parents and next friends, filed suit against Hopkins on March 23, 1993. ²

Count I of the Peppers' six-count complaint, which claimed damages on behalf of Travis individually, alleged that Hopkins, through its employees, negligently failed to treat Travis's condition as non-emergent, negligently failed to undertake alternative and "less risky" modes of treatment, negligently performed surgery upon Travis when his age and health status rendered such surgery inadvisable, and otherwise failed to use reasonable and ordinary care in Travis's overall treatment. Counts II and III of the Complaint likewise sounded in negligence but were actions brought by, respectively, Linda and Terry Pepper individually, for inter alia, recovery of medical expenses. Counts IV and V brought on behalf of Travis, and by Terry and Linda Pepper, essentially alleged that Hopkins failed to adequately inform the Peppers of the risks attendant to Travis's surgery. Count VI ³ of the Complaint was a loss of consortium claim brought by Terry and Linda Pepper.

Raising limitations pre-trial in a summary judgment motion, Hopkins successfully argued that Linda and Terry Peppers' claims were time-barred since any cause of action in their favor arose six years previously, and that their suit was filed three years beyond the applicable limitations period. See Md.Code (1989, 1994 Supp.), § 5-101 of the Courts & Judicial Proceedings Article. Thus, only Travis's claims of negligent care and lack of informed consent survived partial summary judgment, which was entered in Hopkins's favor on August 2, 1993.

All discovery in the case ceased on December 2, 1993. The Peppers submitted their pretrial memorandum on March 9, 1994. Section 3 of that document was captioned "AMENDMENTS REQUIRED OF PLEADINGS ." The word "None" followed the caption. Nevertheless, the Peppers filed a First Amended Complaint on June 13, 1994, adding to Travis's original claim of negligence the allegation that, inter alia, "Terry and Linda Pepper [ ] are financially unable to provide for the past and future care and treatment Travis will require and need...." Contemporaneous with the filing of their amended complaint, Terry and Linda Pepper also filed a Motion for Reconsideration of the court's dismissal of Counts II and III of their original Complaint. The court denied the motion, and in response to Hopkins's argument, struck the Amended Complaint as untimely.

On the first day of trial, Hopkins moved in limine to exclude any evidence concerning medical expenses incurred either by Travis Pepper or his parents. In Hopkins's view, under our holding in Garay, supra, a claim for pre-majority medical expenses belongs solely to the parents of an injured child. Since Terry and Linda Pepper lost their parental claims for medical expenses by operation of limitations, Travis's pre-majority medical expenses had no relevancy at trial. Pointing to Travis's profound and permanent dependency on others for his care, Hopkins similarly argued that since Maryland law charges parents with an obligation to support an incapacitated and unemancipated adult child, Travis will never be able to assert a claim for medical expenses in his own name, pre or post majority.

Although the Peppers conceded that a claim for pre-majority medical expenses ordinarily belongs to the parents of an injured child, they pointed out that Garay recognized four circumstances in which minors could recover such expenses in their own right and that at least two of those exceptions applied in the case sub judice. The trial court rejected those assertions and granted Hopkins's motion in limine. The case thus proceeded to trial on Hopkins's alleged negligence and Travis's damages, limited as they were by the trial court's ruling to his lost future income and non-economic damages.

The jury returned a verdict in Travis's favor for non-economic damages in the amount of $750,000. ⁴ That figure was subsequently reduced to $350,000 pursuant to Md.Code (1989 Repl.Vol., 1993 Supp.), § 11-108 of the Courts & Judicial Proceedings Article. The jury did not, however, award Travis Pepper damages for lost future earnings, concluding, in response to a special verdict, that Travis would not survive to the age of gainful employment. The Peppers filed a timely appeal to the Court of Special Appeals claiming, inter alia, that the trial court erroneously granted Hopkins's motion in limine, when they had otherwise proffered sufficient evidence concerning their inability to pay the bulk of Travis's medical expenses. The intermediate appellate court agreed and remanded the case to the Circuit Court for Baltimore City for a new trial on the amount of damages, "if any, Travis Pepper is entitled to recover for medical expenses." Pepper v. Johns Hopkins Hospital, 111 Md.App. 49, 80, 680 A.2d 532, 547 (1996). We issued a writ of certiorari to review that decision.

II.

The present controversy is best illuminated by a review of the constituent facts and law of Garay v. Overholtzer. As in the case sub judice, in Garay, a minor child allegedly suffered injuries as the result of another's negligence. The parents of the child tarried for nearly five years before filing a two-count complaint against the wrongdoer. The first count of the complaint sought damages in the injured child's name for his pain and suffering; the second, for parental medical expenses incurred on behalf of the child. Overholtzer, the alleged tortfeasor, moved to dismiss the second count on limitations grounds, claiming that the parents' cause of action for medical expenses accrued on the date of the child's injury. Because the parents waited more than three years to file their action, Overholtzer argued, limitations barred their claim. The trial court agreed and struck the second count of the complaint.

The parents then amended the complaint. This time, the minor child attempted to claim medical expenses in his own name. Overholtzer again moved to dismiss the claim on limitations grounds, essentially arguing that minors possess no right to bring a claim for medical expenses in their own name and that parents have no right to assign a claim to their minor child that is otherwise barred by limitations. Once again, Overholtzer prevailed. ⁵

In considering the matter, we agreed that the right to recover medical expenses ordinarily vests in the parents of a negligently injured minor child. ⁶ 332 Md. at 365, 631 A.2d at 442 (citing Hudson v. Hudson, 226 Md. 521, 530, 174 A.2d 339, 343 (1961)). This rule of standing, we noted, was premised upon the notion that parents have a duty to care for their minor children, and as part of that duty, must of necessity become contractually bound to others for medical services provided on a minor child's behalf. Id. at 366, 631 A.2d at 442. Indeed, Md.Code (1991, 1993 Supp.), § 5-203(b)(1) of the Family Law Article holds the parents of a minor child ...