Kyte v. McMillion

• Decision Date: 09 December 1969
• Docket Number: No. 75,75
• Citation: 256 Md. 85,259 A.2d 532
• Parties: , 64 A.L.R.3d 822 Edna Arlene KYTE, Infant, et al. v. Rodney K. McMILLION.
• Court: Maryland Court of Appeals

Page 85

256 Md. 85

259 A.2d 532, 64 A.L.R.3d 822

Edna Arlene KYTE, Infant, et al. v. Rodney K. McMILLION.

No. 75.

Court of Appeals of Maryland.

Dec. 9, 1969.

Marvin Ellin, Baltimore (Leonard Passano Baker, Jr., Baltimore, on the brief) for appellants.

Herbert Burgunder, Jr., Baltimore (F. Gray Goudy, Baltimore, on the brief) for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN and SINGLEY, JJ.

McWILLIAMS, Judge.

The trial judge, Watts, J., found this case 'vexing * * * and difficult to decide.' Although we do not agree with the result he reached we do agree that the circumstances are extraordinary and that the single issue presented is not nearly as simple as, at first glance, it might seem. As Judge Watts put it, '(b)y stipulation the parties agree that the only issue in the case is * * * (whether the) release of Union Memorial Hospital (the subsequent tort-feasor) bar(s) an action against Rodney K. McMillion (the primary tort-feasor).' The facts, while intricate, are not in dispute.

On 3 January 1967 the appellant (Edna), then 15 years old, was a passenger in an automobile driven by the appellee (McMillion) but owned by his father. McMillion, 20 years old, did not have a license to operate a motor vehicle. There were others in the car but their identity has no significance here. Officers in a police car signalled McMillion to stop but instead of stopping he increased his speed and tried to outrun the police car which forthwith gave chase. Edna begged him to stop but he pressed on. At the intersection of The Alameda and Loch Raven Boulevard, in Baltimore City, he struck another car. Edna, seriously injured, was taken to Union Memorial Hospital, where she remained for several months.

Upon admission, the physician attending her ordered the transfusion of one unit of type Rh negative whole blood. Around 5:00 a. m. (4 January) a nurse noticed that the plastic bag of blood was nearly empty and knowing that a second unit had been ordered for Edna she went to the blood bank, obtained the blood, brought it back to Edna's bed, replaced the empty container and started the infusion into Edna's vein 'at an estimated drip of 7 to 8 drops per minute.' Shortly thereafter she discovered, quite by chance, that a mistake had been made and that the blood Edna was receiving was Rh positive instead of Rh negative. Immediately she 'went to a nearby medicine room, obtained a bottle of normal saline solution, ran back to * * * (Edna's) bed, turned off the blood and started the saline solution.' About 1/4 to 1/2 of a cubic centimeter of the Rh positive blood had been absorbed when the nurse turned off the flow.

Other than an itching rash which lasted less than an hour Edna suffered no other reaction as a result of this incredible mishap. There was no aggravation of her injuries. Her stay in the hospital was not prolonged thereby. She experienced no pain or discomfort except that occasioned by her broken bones. Some weeks later, however, a blood test revealed that she had 'developed antibodies in a concentration of 1 to 16 saline, 1 to 32 albumin.' In the opinion of Dr. Michael B. Monias, whose gynecological expertise was not challenged, '(t)here is no doubt whatsoever that if she marries an Rh positive individual, her pregnancies will be complicated. Her chances of having a dead or severely damaged baby in first pregnancy are significant. * * * In addition to the bleak prospects of future pregnancies she will have difficult gestation from both an emotional and physical point of view.' Dr. Monias concluded she had suffered an 'irreversible sensitization which will affect her child-bearing capacity.'

On 25 March 1967 Edna filed suit in the Circuit Court for Baltimore County against the hospital and the nurse. Her cause of action was based exclusively on the transfusion of the Rh positive blood. She alleged that as a result thereof 'she is now fearful of her health and safety' and that being 'deeply depressed and emotionally disturbed' her health has suffered thereby. Answering interrogatories submitted by the defendants she attributed the pain she suffered to 'her traumatic injuries.' Neither did she 'blame her present inability to pursue her normal activities on the negligent blood transfusion * * *' nor did she contend 'that any of her present restriction or curtailment of her activities in school sports or her social life is related to the faulty transfusion.' In January 1968 the case was removed to the Baltimore City Court.

The case against the hospital came on for trial in the Baltimore City Court before Judge Cole and a jury on 30 January 1968. At the conclusion of the evidence Edna's motion for a directed verdict was granted. Judge Cole instructed the jury that 'in arriving at the amount of the verdict for the plaintiff' they should consider only such an amount as will reasonably and fairly compensate her for mental pain, suffering and mental anguish * * * as proximately resulting from the injury to her blood,' and such an amount as will compensate her 'for the adverse effects of the blood sensitization upon her daily activity and a family and social life.' He further instructed them that their decision was 'not to be affected merely because the plaintiff received numerous serious injuries in an automobile accident.' Finally he instructed them, at Edna's request, that she was 'making no claim for income that would be lost to her in the future as a result of the negligence of the defendant.'

While the jury was still engaged in its deliberations the parties reached an agreement in respect to the amount of the damages, whereupon the court recalled and dismissed the jury. A few days later Edna and her mother executed and delivered the following release:

'KNOW ALL MEN BY THESE PRESENTS: That I/we the undersigned LOIS L. KYTE, individually, and as parent and next friend of EDNA ARLENE KYTE, Infant, for the sole consideration of In Excess of Fifteen Thousand ($15,000.00) paid to me/us by UNION MEMORIAL HOSPITAL, INC. and ELLEN E. OSSMAN, or their representatives do hereby release, acquit and discharge the said UNION MEMORIAL HOSPITAL, INC. and ELLEN E. OSSMAN and their representatives and any and ALL OTHER PERSONS, FIRMS, PARTNERSHIPS and CORPORATIONS which are or might be claimed to be liable to me/us from all claims and demands of whatever nature, actions and causes of action, damages, costs, loss of service, expenses and compensation on account of or in any way growing out of personal injuries and property damage having already resulted or to result at any time in the future, whether or not they are in the contemplation of the parties at the present time and whether or not they arise following the execution of this release, as the result of and by reason of treatment rendered to the said EDNA ARLENE KYTE, infant, at UNION MEMORIAL HOSPITAL commencing on January 3, 1967 and thereafter, specifically including but not limited to a transfusion of blood.

'AND I/We do hereby, for myself/ourselves, my/our heirs, administrators, executors and assigns, covenant with the said UNION MEMORIAL HOSPITAL, INC. and ELLEN E. OSSMAN and their representatives and any and ALL OTHER PERSONS, FIRMS, PARTNERSHIPS and CORPORATIONS which are or might be claimed to be liable to us/me as the result of the aforesaid accident, to indemnify and save harmless any and all of them from all claims and demands for damages, costs, loss of service, expenses and compensation on account of, or in any way growing out of, said accident and its results, past, present or future, both to persons or property. It is further agreed that this RELEASE expresses a full and complete SETTLEMENT of a liability claimed and denied and, regardless of the adequacy of the compensation, is intended to avoid litigation, and that there is absolutely no agreement on the part of any or all of the said persons, firms, partnerships or corporations herein released to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to.

'Witness my/our hand(s) and seal(s) this 9th day of February in the year nineteen hundred and sixty-eight.' (A printed form was used in preparing the release. The italicized matter was type-written into the blank spaces.)

Within a month after the execution and delivery of the release Edna filed suit in the Baltimore City Court against McMillion who shortly thereafter pleaded the general issue. Some months later, however, after discovery procedures disclosed the fact of the suit against the hospital and the ensuing settlement and release, McMillion's counsel, with leave of court, filed an amended plea setting up the release as a bar to Edna's claim. The case came on for trial before Judge Watts, sitting without a jury, on 17 February 1969. No testimony was produced. The case was submitted on stipulations which are set forth below, paraphrased in part, in part verbatim.

Edna signed and McMillion signed and acknowledged before a notary public the following 'stipulation' which was then filed as an exhibit:

'It is stipulated and agreed * * *:

'1. That the only issue in this case is that raised in Defendant's Plea which reads as follows:

"Plaintiffs' claims against Defendant herein and this cause of action are barred by the satisfaction of a certain cause of action filed in the Circuit Court for Baltimore County and removed to this Court where it is docketed, 103/421, as Edna Arlene Kyte, Infant, by her mother and next friend, Lois L. Kyte vs. Union Memorial Hospital, Inc. a body corporate and Ellen E. Ossman and which case and cause of action shows a docket entry of February 13, 1968 of 'AGREED, SETTLED and SATISFIED'.'

'2. That should trial of this issue result in a finding in favor of Defendant, then judgment for Defendant is to be entered herein.

'3. That should trial of this issue result in a finding that Plaintiffs' claims * * * are not barred as set forth in the Plea, then judgment shall...