Mehlman v. Powell

• Decision Date: 28 October 1977
• Docket Number: No. 39,39
• Citation: 378 A.2d 1121,281 Md. 269
• Parties: Edward S. MEHLMAN et al. v. Charlotte W. POWELL et al.
• Court: Maryland Court of Appeals

Page 269

281 Md. 269

378 A.2d 1121

Edward S. MEHLMAN et al. v. Charlotte W. POWELL et al.

No. 39.

Court of Appeals of Maryland.

Oct. 28, 1977.

James P. Salmon, Upper Marlboro (Sasscer, Clagett, Channing & Bucher, Upper Marlboro, on the brief), for Edward S. Mehlman.

David A. Levin, Upper Marlboro (Alan R. Siciliano, O'Malley, Miles, Farrington & McCarthy, Upper Marloboro, on the brief), for Holy Cross Hospital of Silver Spring, Inc.

Roy L. Mason, Rockville (William A. Ehrmantraut and Donahue & Ehrmantraut, Rockville, on the brief), for Ruben C. Cosca.

Carl Harrison Lehmann, Upper Marlboro, for Charlotte W. Powell.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ., and DAVID T. MASON, Special Judge.

ELDRIDGE, Judge.

This is a medical malpractice action which arose out of the following circumstances. Beginning in December 1973, Mr William Powell experienced shortness of breath and other discomfort which led him, in March 1974, to consult his personal physician. Mr. Powell's physician, after administering a variety of tests, referred Mr. Powell to Dr. Edward Mehlman, a specialist in internal medicine. On April 5 and again on April 15, 1974, Mr. Powell visited Dr. Mehlman's office and further tests were performed. The results of these tests were inconclusive. It was alleged in the trial court proceedings that, given the symptoms displayed by Mr. Powell, standard medical procedure would have included the administration of a perfusion lung scan. Dr. Mehlman did not administer this procedure. It was further contended that the perfusion lung scan would have revealed that Mr. Powell was suffering from pulmonary embolic disease, and that this disease could have been successfully treated had the correct diagnosis been made.

On May 28, 1974, Mr. Powell was unable to get out of bed. His wife telephoned Dr. Mehlman's office but was unable to reach him, and the decision was made to take Mr. Powell to Holy Cross Hospital. He was received in the Holy Cross Hospital emergency room by Dr. Ruben Cosca. Dr. Cosca ordered an electrocardiogram, a physical examination, x-rays and other tests, and consequently made an initial diagnosis of pneumonitis. It was undisputed at trial that the electrocardiogram revealed gross abnormalities, and that Dr. Cosca's reading of the electrocardiogram was erroneous. It was claimed that, on the basis of the electrocardiogram and other available evidence, Dr. Cosca should have known that Mr. Powell was in imminent danger of dying from heart failure due to pulmonary embolism.

As a result of the diagnosis of pneumonitis, Mr. Powell was released from the Hospital and returned to his home. Mr. Powell died on the morning of May 30, 1974, without receiving further medical attention. An autopsy revealed pulmonary embolism to have been the cause of his death.

The widow and minor children of William Powell brought this action in the Circuit Court for Montgomery County against, inter alia, Dr. Edward Mehlman, Dr. Ruben Cosca and Holy Cross Hospital, claiming that the defendants had negligently caused the death of William Powell. A jury returned a verdict in favor of the plaintiffs and against the above-named defendants for $221,000.00, and judgments for this amount were entered. A judgment was also entered in favor of the Hospital and against Dr. Cosca, on the Hospital's cross-claim against Dr. Cosca for indemnity. The defendants took appeals from these judgments to the Court of Special Appeals, and, prior to any decision in the Court of Special Appeals, this Court issued a writ of certiorari.

(1)

In the trial court, the plaintiffs argued that Dr. Cosca, the emergency room physician, was either actually or apparently an employee of the Hospital, and that, consequently, the Hospital was vicariously liable for the negligent acts of Dr. Cosca.

The Hospital, at the close of evidence, moved for a directed verdict on the ground that the plaintiffs had failed to establish any master-servant relationship between Dr. Cosca and the Hospital, and the Hospital now claims that the trial court's denial of this motion was in error.

The Hospital argues that Dr. Cosca, with other physicians, operated the Hospital emergency room as independent contractors, and that the Hospital and the Hospital emergency room were separate entities. Therefore, the argument continues, there was no actual master-servant relationship between Dr. Cosca and the Hospital, and the Hospital cannot be liable for Dr. Cosca's negligence. We note, however, that the record shows that the Hospital subjects the emergency room to a degree of control through its regulations. For example, one regulation provides that an emergency room physician does not have the authority to admit patients to the Hospital. This must be done by the patient's private physician. The record also shows that all billing for emergency room services is done by the Hospital, not the emergency room physicians.

Nevertheless, we will assume arguendo that no actual master-servant relationship between Dr. Cosca and the Hospital was established. We still believe that the trial court was correct in its denial of the Hospital's motion for a directed verdict.

In B. P. Oil Corp. v. Mabe, 279 Md. 632, 643, 370 A.2d 554, 560 (1977), this Court endorsed § 267 of Restatement (Second) of Agency, which provides in part:

"One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such." (Emphasis supplied.)

B. P. Oil Corp. v. Mabe, supra, concerned a plaintiff who drove into a BP service station where an attendant apparently poured gasoline instead of water into the radiator, resulting in a fire which injured the plaintiff. No actual agency relationship between the operator of the station and B. P. Oil Corp. was found to have been established. Although a number of signs read "BP," and there were no signs indicating private ownership, this Court held that the circumstances in the case were not sufficient for the jury to infer that the plaintiff had justifiably relied on B. P. Oil Corp. to provide the desired services. Speaking for the majority of the Court, Judge Smith noted that it is commonly known that a substantial number of service stations are independently owned, and stated (279 Md. at 649, 370 A.2d at 563):

" . . . (The plaintiff) said he was attracted to Faison's station by '(n) othing except for the (fact that it was a) BP station, (and it) had BP signs, BP gas, BP pumps.' This, added to the statement of Mabe that his reason for choosing the station in question was that he 'always buy(s) BP gasoline, always deal(s) with BP,' is but little different from a statement that one always buys a particular make of shoes, wears clothes with a certain label drives an automobile produced by a certain manufacturer, eats a certain brand of breakfast cereal, or smokes a certain kind of cigarette."

The Hospital argues that the circumstances of the instant case are analogous. Although there were no signs or any other indications that the emergency room was not run by the Hospital staff, the Hospital contends that, as in B. P. Oil Corp. v. Mabe, supra, these appearances do not justify reliance.

We disagree. First, in B. P. Oil Corp. v. Mabe, supra, it was necessary to distinguish between the products offered for sale and the automotive services provided by the attendant. The mere fact that BP products are advertised for sale does not, in itself, justify the inference that BP is as well directly providing automotive services. The Hospital, however, is engaged in the business of providing health care services. One enters a hospital for no other reason....