Meda v. Brown

• Decision Date: 01 September 1988
• Docket Number: No. 38,38
• Citation: 569 A.2d 202,318 Md. 418
• Parties: Harinath S. MEDA v. Dorothy Virginia BROWN, et vir. ,
• Court: Maryland Court of Appeals

Page 418

318 Md. 418

569 A.2d 202

Harinath S. MEDA v. Dorothy Virginia BROWN, et vir.

No. 38, Sept. Term, 1988.

Court of Appeals of Maryland.

Feb. 7, 1990.

Ronald U. Shaw (Timothy L. Mullin, Jr., Stephen J. Hughes, Daniel R. Lanier, Miles & Stockbridge, all on brief), Baltimore, for petitioner & cross-respondent.

John R. Penhallegon, Smith, Somerville & Case, both on brief, Baltimore, amicus curiae, for The Maryland Ass'n of Defense Trial Counsel.

Gilbert H. Robinette (Henry E. Dugan, Jr., Robinette, Dugan & Jakubowski, P.A., all on brief), Baltimore, for respondent & cross-petitioners.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL ^*, JJ.

McAULIFFE, Judge.

This case involves the use of inferences to prove a claim of medical malpractice. Two medical experts, testifying for the plaintiff, ¹ relied in part upon an inference of negligence in reaching the conclusion that substandard care on the part of the defendant anesthesiologist caused the plaintiff to suffer a radial nerve injury. The jury found in favor of the plaintiff, but the trial judge granted the defendant's motion for judgment notwithstanding the verdict, holding that there was no legally sufficient evidence to support the verdict, because

[t]he testimony of plaintiff's two experts ... rested upon inferences and thus constituted the kind of res ipsa loquitur evidence barred by Hans [v. Franklin Square Hosp., 29 Md.App. 329, 347 A.2d 905 (1975), cert. denied, 276 Md. 744 (1976) ].

The plaintiff appealed. The Court of Special Appeals reversed and directed the entry of judgment in accordance with the verdict of the jury. Brown v. Meda, 74 Md.App. 331, 537 A.2d 635 (1988). The court held that the concept of res ipsa loquitur was applicable because laymen could properly infer negligence from the happening of an unusual injury to a healthy part of the patient's body remote from the area of the operation, and because the applicability of res ipsa loquitur in this case was further validated by the presence of expert testimony. Id. at 345, 537 A.2d 635. Significantly, the court also noted that "whether we refer to the facts herein as res ipsa loquitur or as proof of negligence by circumstantial evidence the result is the same." Id. at 345 n. 2, 537 A.2d 635.

We affirm, not on the basis of the applicability of res ipsa loquitur, but because the testimony was sufficient to support the inferential conclusion of negligence drawn by the plaintiff's experts.

Dorothy Virginia Brown underwent bilateral breast biopsy surgery, under general anesthesia, at Sinai Hospital in Baltimore. The anesthesiologist in charge of her case was Dr. Harinath S. Meda. There was testimony at trial that it was the duty of the anesthesiologist not only to administer anesthesia and periodically monitor vital signs, but also to assure that the patient was properly positioned so as to prevent the application of pressure against certain vulnerable nerves and blood vessels. According to the plaintiff's experts, this latter duty of the anesthesiologist extends not only through the operative procedure, but also into the recovery room, and, in the opinion of one expert, "until the patient is fully recovered from anesthesia."

Mrs. Brown entered the operating room shortly before noon. She was in surgery until 1:50 p.m. She was admitted to the recovery room at 1:55 p.m., at which time she was reported to be responding to painful stimulus. She was moved from the recovery room to the floor at 4:45 p.m., when she was noted to be "alert and awake." Mrs. Brown described herself as "groggy" and not completely aware of her surroundings until the following morning. At that time, she said she noticed, and complained to the nurses of, pain, numbness, and tingling in the right hand, and particularly in the fourth and fifth fingers of that hand. This condition, which persisted and to some degree remains permanent, was diagnosed as an injury to the ulnar nerve--a nerve that originates in the area of the shoulder and extends into the hand, providing motor and sensory functions to a part of the hand, including part of the fourth and all of the fifth fingers.

Mrs. Brown thereafter filed a claim with the Health Claims Arbitration Office, alleging malpractice on the part of Dr. Meda, other doctors and other nurses, and Sinai Hospital. Prior to a hearing by the Health Claims Arbitration panel, the plaintiff dismissed her claims against everyone except Dr. Meda, Sinai Hospital, and a nurse anesthetist. The panel found in favor of Sinai Hospital and the nurse anesthetist, but found Dr. Meda liable and awarded the plaintiff $300,000 in damages. Dr. Meda rejected the arbitration panel's award. The plaintiff filed a complaint in the Circuit Court for Baltimore City, naming Dr. Meda as the sole defendant. A jury found in favor of the plaintiff and awarded her $600,000 in damages. As we have noted, the trial judge granted the defendant's motion for judgment notwithstanding the verdict, and the Court of Special Appeals reversed the action of the trial judge. We granted certiorari.

The trial judge was correct when, in granting the motion for judgment notwithstanding the verdict, he concluded that the opinion of the plaintiff's experts rested, at least in part, upon inference. He erred, however, when he concluded that dependence upon an inference necessarily means that the concept of res ipsa loquitur is invoked.

The Latin phrase, res ipsa loquitur, used by Baron Pollock in the case of Byrne v. Boadle, 2 H. & C. 722, 159 Eng.Rep. 299 (1863), means, in its simplest terms, that "the thing speaks for itself." Dean Prosser describes the later utilization of the phrase as follows:

From that casual utterance, dignified and magnified by the cloak of the learned tongue, there has grown by a most extraordinary process the 'doctrine' of res ipsa loquitur. It is a thing of fearful and wonderful complexity and ramifications, and the problems of its application and effect have filled the courts of all our states with a multitude of decisions, baffling and perplexing alike to students, attorneys and judges.

W. Prosser, Res Ipsa Loquitur in California, 37 Calif.L.Rev. 183 (1949). Former Chief Judge Bond, dissenting in the case of Potomac Edison Co. v. Johnson, 160 Md. 33, 40-41, 152 A. 633 (1930), earlier expressed similar disenchantment with the use being made of the phrase:

It adds nothing to the law, has no meaning which is not more clearly expressed for us in English, and brings confusion to our legal discussions. It does not represent a doctrine, is not a legal maxim, and is not a rule. It is merely a common argumentative expression of ancient Latin brought into the language of the law by men who were accustomed to its use in Latin writings.

* * *

* * * It may just as appropriately be used in argument on any subject, legal or otherwise. Nowhere does it mean more than the colloquial English expression that the facts speak for themselves, that facts proved naturally afford ground for an inference of some fact inquired about, and so amount to some proof of it. The inference may be one of certainty, as when an excessive interest charge appeared on the face of an instrument, or one of more or less probability only, as when negligence in the care of a barrel of flour was found inferable from its fall out of a warehouse.

More recently, Judge Orth, writing for the Court of Special Appeals in C. & P. Tel. Co. v. Hicks, 25 Md.App. 503, 337 A.2d 744 (1975), cert. denied, 275 Md. 750, provided an excellent review of the development of res ipsa loquitur in Maryland, and noted that the three criteria generally required for the creation of an inference of negligence on the part of a defendant in such cases are:

1. A casualty of a sort which usually does not occur in the absence of negligence.

2. Caused by an instrumentality within the defendant's exclusive control.

3. Under circumstances indicating that the casualty did not result from the act or omission of the plaintiff.

Id. at 516, 337 A.2d 744.

The question of the legal effect of successfully invoking res ipsa loquitur has been the subject of substantial debate, and the source of some earlier confusion in this State. See R. Thomsen, Presumptions and Burden of Proof in Res Ipsa Loquitur Cases in Maryland, 3 Md.L.Rev. 285 (1939). It is now clear, as the Court of Special Appeals pointed out in Hicks, that Maryland follows the view of the vast majority of the courts in this country, and of the Restatement, ² in concluding that when the criteria of res ipsa loquitur have been satisfied, an inference of negligence may be drawn.

We believe that the true interpretation of res ipsa loquitur in Maryland, despite apparent inconsistencies in discussing it, is that espoused by the great majority of American courts. The doctrine merely provides a permissible inference of negligence. This means that the inference of negligence to be drawn from the circumstances is left to the jury. They are permitted, but not compelled to find it. As for the plaintiff, the doctrine furnishes sufficient evidence to go to the trier of fact. As for the defendant, the burden of proof is not shifted to him, nor is any burden of introducing evidence cast upon him, except in the very limited sense that if he fails to do so, he runs the risk that the trier of fact may, and very likely will, find against him. In other words, he has no duty to go forward with the evidence, but by not doing so he runs the risk of non-persuasion. Of course, there will be occasional cases where the inference of negligence is so clear that no reasonable man could fail to accept it. In such cases, if the defendant offers no explanation, a verdict should be directed for the plaintiff. 'In other words', Prosser says, § 40 at p. 230, 'the procedural effect of a res ipsa case is a matter for the strength of the inference drawn, which will vary with the circumstances of the case.'

Hicks...