Johns Hopkins Hospital v. Genda

• Decision Date: 13 November 1969
• Docket Number: No. 24,24
• Citation: 255 Md. 616,258 A.2d 595
• Parties: JOHNS HOPKINS HOSPITAL v. Robert J. GENDA et ux., etc.
• Court: Maryland Court of Appeals

Page 616

255 Md. 616

258 A.2d 595

JOHNS HOPKINS HOSPITAL v. Robert J. GENDA et ux., etc.

No. 24.

Court of Appeals of Maryland.

Nov. 13, 1969.

Ward B. Coe, Jr., and John F. King, Baltimore (Thomas G. Young, III, and Anderson, Coe & King, Baltimore, on the brief) for appellant.

William H. Engelman, Baltimore (Herbert J. Belgrad, and Berenholtz, Kaplan & Heyman, Baltimore, on the brief) for appellees.

Before HAMMOND, C. J., and MARBURY, ^* McWILLIAMS, FINAN and SMITH, JJ.

FINAN, Judge.

This case is before us on appeal from a jury verdict of $50,000 awarded to plaintiffs-appellees for personal injury to their infant son resulting from a fragment of a needle left in his body at the time of a surgical operation upon his heart. The case was tried in the Superior Court of Baltimore City. Before the case was submitted to the jury, defendant Johns Hopkins Hospital moved for a directed verdict. The denial of this motion and the trial court's failure to issue proper jury instructions in regard to proximate cause were the subject of this appeal.

Robert J. Genda, Jr., son of appellees, had been afflicted with a congenital heart disorder since his birth in 1951. He had made annual trips to the Johns Hopkins Hospital from his home in Pittsburgh, Pennsylvania. Finally, in 1960 it was decided that open heart surgery would be necessary to remove an obstruction that was causing eight times the normal pressure to the right ventricle of the heart. ¹ Dr. Frank Spencer, operating surgeon, and Dr. R. Robinson Baker, ² who acted as first assistant, performed the operation. While suturing the incision, the needle which Dr. Baker was using broke. After initially attempting to remove the fragment, a decision was made to leave it as the time factor created additional risks. There was no contention by appellees that this decision was improper. Dr. Baker did not reveal the fact that the needle had broken to the parents since he believed it could cause the child no physical harm and would only upset the parents. Only in 1962 did the child and appellees learn of the needle fragment when an x-ray was taken incident to plastic surgery to excise a keloid scar remaining after heart surgery. Subsequent to learning of it, the child started complaining of chest pains and became frightened to participate in normal, youthful activities.

At the trial the primary issue was whether the breaking of the needle constituted an act of negligence on the part of Dr. Baker, who was an admitted agent of the defendant-appellant. The major evidence introduced by appellees was the following dialogue between Dr. Baker and appellees' counsel at a pretrial deposition.

'Q. Could you express any opinion as to why this needle may have broken at this particular time? A. Obviously, if it broke, it was put in at the wrong angle.

Q. If it was put in at the wrong angle, you put it in at the wrong angle. Is that right? A. That is correct.'

This was the only expert testimony appellees were able to introduce on the issue of negligence. Appellant offered the following dialogue from the same deposition as clarification of the above statement.

'Q. You mentioned suturing and closing. A. Yes.

Q. Did you follow the accepted surgical practice in carrying out this closure? A. Yes.

Q. Did you use the accepted instruments to carry out the closure? A. Yes.

Q. Did you use the accepted procedure in doing it? A. Yes.

Q. Did you employ the accepted technique? A. Yes.

Q. Even as to the insertion of the needle at particular angles, did you follow the accepted surgical practice in that respect? A. Yes.

Q. In spite of the presence of all this, the needle broke. Is that what you mean? A. Yes.

Q. Quite apart from just not sewing the child up at all, was there anything you could have done to prevent the needle from breaking? A. No.

On direct examination, in defendant's case at trial, Dr. Baker gave the following explanation of his deposition testimony:

Q. (Mr. King) Now in-in using that movement, that which you've demonstrated, you stated in answer to Mr. Engelman's question when he deposed you, Dr. Baker, that it was the wrong angle. You remember that? A. Yes.

Q. Why did you say it was the wrong angle? What do you mean by that? A. I said it was the wrong angle because after the needle had broken, after the fact, really, I decided that I must have put it in at the wrong angle, but I have no way of knowing what that wrong angle is. I said I put it at the wrong angle because it broke after I put it in there.

Q. Was it, would you use the same angle today as you used then?

(The Witness) Yes, I would use the same angle. I literally put thousands, tens of thousands of these sutures in before and since this particular incident, and occasionally the needle breaks. I really don't know why it breaks. Yesterday I tried to break this needle to demonstrate the angle, but I can't break it on purpose.

At the close of the case, appellant renewed its motion for a directed verdict on the grounds that there was insufficient evidence produced to alllow a finding of negligence. Because we agree with appellant's contention that a directed verdict should have been granted, we need not consider the appropriateness of the judge's charge to the jury.

We are of the opinion that under Maryland decisions, and respectable authority from other jurisdictions, in order for the plaintiffs to prevail in this case, it was incumbent upon them to introduce sufficient evidence from which the jury could have determined (1) the standard of skill and care ordinarily exercised by surgeons in cases of this kind and (2) that the defendant in this case failed to comply with those standards.

In Smith v. Reitman, 128 U.S.App.D.C. 352, 389 F.2d 303 (1967), a suit against a dentist for injuries sustained from a root extraction, the plaintiff produced an expert who testified that 'in view of the patient's response * * * and injury * * * a mistake was made.' In affirming a directed verdict for the defendant, Judge (now the Chief Justice of the United States) Burger said for the majority (389 F.2d at 304):

'In order to make out a case of malpractice, * * * the plaintiff must show that his injury was a result of the failure to use 'that degree of care and skill ordinarily exercised by the profession in his own or similar localities.' * * * He can do this by direct evidence about the standard in his locality and the procedure used in his case, in order to demonstrate that it fell short of that standard. * * *'

Our predecessors some 80 years ago in State, Use of Janney v. Housekeeper, 70 Md. 162, 171, 16 A. 382, 2 L.R.A. 587 (1889), a case brought under Lord Compbell's Act against two defendant physicians for the alleged wrongful and unskillful performance of a surgical operation upon a woman which allegedly caused her death, laid down the standard which must be observed by physicians or surgeons in such circumstances:

'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. * * *' Id. at p. 171, 16 A. at p. 384.

The Court in Housekeeper also approved the following prayer submitted by the defendant 'That the degree of care and skill to be exercised by physicians and surgeons in the performance of an operation is not the highest degree of care and skill known to the profession, but that reasonable degree of care and skill which physicians and surgeons ordinarily exercise in the treatment of their patients; and the burden of proof is on the plaintiffs in this case to establish by preponderating evidence a want of such ordinary care and skill in the performance of the operation and attendance upon the said Matilda C. Janney.' Id. at page 166, 16 A. 382 (Emphasis supplied).

See also State, for Use of Solomon v. Fishel, 228 Md. 189, 203, 179 A.2d 349 (1962); State, for Use of Shockey v. Washington Sanitarium, 223 Md. 554, 558, 165 A.2d 764 (1960); Bettigole v. Diener, 210 Md. 537, 124 A.2d 265 (1956); State, to Use of Kalives v. Baltimore, etc., Hospital, 177 Md. 517, 526, 10 A.2d 612 (1940); Fink v. Steele, 166 Md. 354, 171 A. 49 (1934); Angulo v. Hallar, 137 Md. 227, 232, 233, 112 A. 179 (1920); Miller v. Leib, 109 Md. 414, 426, 72 A. 466 (1909); Dashiell v. Griffith, 84 Md. 363, 380-381, 35 A. 1094 (1896). See also Riley v. United States, 248 F.Supp. 95, 97 (D.Md. 1965).

In Kalives, supra, this Court stated:

'Before the equitable plaintiffs can recover against any of the defendants, it must be shown by affirmative evidence that they were either unskilled or negligent in their respective capacities, and that such want of skill or care resulted in the death of Mr. Kalives. If either of the above elements is lacking in the proof, then no case for the consideration of the jury has been presented.' 177 Md. at p. 526, 527, 10 A.2d at p. 616.

The need for expert testimony in a professional malpractice case was pointed out in Fink v. Steele, supra, wherein Judge Sloan (later Chief Judge) writing for the court stated 'In actions for malpractice against physicians and surgeons, 'the main issue of the defendant's use of suitable professional skill is generally a topic calling for expert testimony only * * * and for lack of it the court may rule, in its general power to pass upon the sufficiency of evidence that there is not sufficient evidence to go to the jury.' Wigmore on Evidence (2nd Ed.), sec. 2090. There may be cases in which there is such gross negligence and...