Paige v. Manuzak

• Court: Maryland Court of Appeals
• Writing for the Court: BLOOM
• Citation: Paige v. Manuzak, 57 Md.App. 621, 471 A.2d 758 (Md. App. 1984)
• Decision Date: 15 February 1984
• Docket Number: No. 687,687
• Parties: Daniel E. PAIGE, et ux. v. Hubert F. MANUZAK, et al. Sept. Term 1983.

Page 621

57 Md.App. 621

471 A.2d 758

Daniel E. PAIGE, et ux. v. Hubert F. MANUZAK, et al.

No. 687 Sept. Term 1983.

Court of Special Appeals of Maryland.

Feb. 15, 1984.

Lewis Straughn Nippard, Ellicott City, and Terry B. Blair, Columbia, for appellants.

M. King Hill, Jr., and John F. King, with whom were Robert E. Scott, Jr., and David Bowers, Baltimore, on brief, for appellees.

Argued before WILNER, GARRITY and BLOOM, JJ.

BLOOM, Judge.

In the fall of 1976, appellant Daniel E. Paige began to suffer from chest congestion and a persistent cough. His symptoms also included fever and sweating. Consequently Mr. Paige made an appointment to see appellee Hubert Manuzak, a physician engaged in the practice of family medicine. On October 22 Dr. Manuzak examined Mr. Paige, took a complete history from him, measured his height and weight, took his temperature and blood pressure, performed a urinalysis, and ordered chest x-rays. Dr. Manuzak initially diagnosed Mr. Paige's problem to be bronchitis and emphysema, for which he prescribed an antibiotic and a cough syrup.

The x-rays ordered by Dr. Manuzak were interpreted by the radiologist as presenting a possibility of either "pneumonitis or active acid-fast infection [tuberculosis]." The interpretation also indicated "considerable generalized pulmonary emphysema." The radiologist recommended that additional x-rays be taken and that they be compared with past x-rays. New x-rays were then obtained, and the radiologist was furnished with a set of x-rays that had been taken in 1975. The radiologist thereafter submitted to Dr. Manuzak a report containing a conclusion that "[c]areful clinical correlation will be needed to exclude the possibility of reactivation of disease such as tuberculosis. If the patient is asymptomatic there is probably no immediate cause for concern and only follow-up chest examinations would merit consideration." Dr. Manuzak instructed the patient to return for another checkup and additional x-rays within a month.

On November 29 Mr. Paige returned to Dr. Manuzak's office. This visit was precipitated by an incident that had occurred a few nights earlier at his home when Mr. Paige experienced stomach distress and uncontrollable coughing, followed by vomiting and unconsciousness. His wife, appellant Joyce Paige, called for an ambulance; but when the ambulance arrived, Mrs. Paige stated that her husband was too ill to go to the hospital and that he would be all right in his own bed.

Dr. Manuzak examined Mr. Paige again and ordered another set of chest x-rays as well as a gastrointestinal series. The radiologist's report of those tests disclosed new diagnostic information. The gastrointestinal series indicated a small gastroesophagel hiatus hernia. Of much greater importance, however, was the radiologist's opinion that the latest x-rays presented the possibility of lung cancer. The report stated that

[t]he first consideration is that of bronchogenic carcinoma for the left upper lobe lesion and it is possible a second malignancy is present in the right lung apex although there is evidence of chronic obstructive pulmonary disease and the latter lesion, or possibly even both lesions, may be scarring from old inflammation.

Upon reviewing that report, Dr. Manuzak contacted Mrs. Paige and told her that her husband might have lung cancer and that he had arranged for Mr. Paige to be examined by a thoracic surgeon, appellee Michele Cerino. On December 8 Mr. Paige was seen by Dr. Cerino at Dr. Cerino's office. After reviewing Paige's x-rays, examining him and taking his history, Dr. Cerino informed appellants that it was highly probable that Mr. Paige had cancer. Dr. Cerino explained that certain diagnostic procedures would confirm the presence or absence of cancer. He also explained that surgery would be performed only if tests indicated that the cancer had not spread to the right lung.

On December 13 Mr. Paige was admitted to Greater Baltimore Medical Center (G.B.M.C.) in Towson where various pre-operative diagnostic tests were performed. A fourth radiological interpretation was obtained by Dr. Cerino on that date. It reported that "worrisome" changes had occurred in the patient's left upper lobe and that these changes "may be secondary to a neoplasm [cancer]." Dr. Cerino also ordered a tomogram (a procedure in which radiographic pictures are taken at various tissue levels) to be performed on Paige's left lung. The tomogram, performed on December 14, indicated that the condition of the right apex of the upper lobe was "worrisome as to the possibility of a neoplasm developing in this area." The tomography report also stated that the problems in other areas of the lung may have been infectious in nature.

Also on the 14th Dr. Cerino performed a bronchoscopy, a procedure whereby a lighted scope was inserted into the patient's lung, enabling the physician to inspect the lungs and also retrieve, by means of brushings and washings, cells and fluids from the lung. The materials thus obtained from Mr. Paige's lungs were examined by appellee Rudiger Breitenecker, a physician employed by Dr. John E. Adams, another appellee, in the pathology laboratory at G.B.M.C. In identifying the results of his cytologic examination, Dr. Breitenecker utilized a standard system whereby cells are classified by Roman numeral designations ranging from Class I (normal) to Class V (definitely cancerous). Dr. Breitenecker labeled Paige's cells Class V. In addition to that designation, Dr. Breitenecker's report stated that "there are abnormal groups of cells present suggestive of a poorly differentiated carcinoma (adeno)."

The washings from the bronchoscopy were also tested for the presence of tuberculosis. An acid-fast test performed on sputum smears collected by the bronchoscope was negative for the presence of tuberculosis bacilli. Some material taken from the lung was also placed in a culture medium to check for eventual growths of tuberculosis germs. The results from culturing are generally not available for about six weeks from the date of the test.

On December 17 Dr. Cerino operated on Mr. Paige. During the course of the surgery, Dr. Cerino forwarded a lesion from the patient's right lung to the pathology lab for evaluation. The report from pathology described the specimen as granulamatous disease with a caseating module, i.e., tuberculosis. That report eliminated Dr. Cerino's concern that cancer from the left lung might have spread to the right lung, so the surgeon removed portions of Mr. Paige's left lung and forwarded them to the pathology lab. Those portions were evaluated as being carcinoma in situ, an early stage or pre-cancerous condition. The final postoperative pathology report concluded that the excised portions of the left lung showed no evidence of malignancy. Dr. Cerino testified that he spoke to Dr. Adams about the discrepancy between the finding of Class V cells and the report of carcinoma in situ on one hand and the final pathology report on the other. Dr. Cerino claimed that Dr. Adams reported to him that Paige did indeed have an early stage of cancer.

Mr. Paige developed numerous post-surgical complications. He was hospitalized until Easter of 1977 and was near death on a number of occasions. Sometime late in February the culture test was completed, and it was positive for tuberculosis.

Appellant and his wife filed a claim against Dr. Manuzak, Dr. Cerino, Dr. Breitenecker, Dr. Adams, and G.B.M.C. in the Health Claims Arbitration Office. At the hearing appellants called Dr. Benjamin H. Minchew, a board-certified internist with a sub-speciality interest in infectious disease, to testify that the various appellees had failed to adhere to their respective standards of care. Although Dr. Minchew was allowed to express his opinion as to Dr. Manuzak, the panel chairman refused to allow such testimony as to Dr. Cerino on the ground that an internist is not qualified to render an opinion as to the standard of care applicable to a thoracic surgeon. Appellants then rested their case, whereupon the Health Claims Arbitration Panel ruled in favor of all appellees.

Appellants thereafter sought review in the Circuit Court for Anne Arundel County. Their motion to vacate the panel's ruling was granted as to Dr. Cerino but denied as to the other appellees. Subsequently, appellants' suit against all of the appellees went to trial in the circuit court.

Appellants' declaration alleged that appellees were negligent in failing to diagnose Mr. Paige's condition as tuberculosis and in failing to provide adequate pre-operative and post-operative care. Dr. Manuzak and Dr. Cerino were alleged to have failed to disclose material facts concerning Mr. Paige's condition. There was a claim for loss of consortium and damage to appellants' marital relationship.

At the close of appellants' case, motions for directed verdicts were granted as to Dr. Manuzak and G.B.M.C. The jury returned a verdict in favor of the other appellees. Appellant then brought this appeal, presenting to us the following questions:

I. Did the court err in excluding appellant's testimony as to consent to surgery?

II. Did the court err in restricting argument on behalf of appellants?

III. Was the parol evidence rule violated when testimony of the witness altered the report of Dr. Bauer?

IV. Did the court err in permitting improper argument on behalf of Dr. Cerino?

V. Did the court err in granting Dr. Cerino's [sic] motion for a directed verdict?

VI. Did the court err in failing to vacate the arbitration award as to all appellees?

I

At trial Mr. Paige was asked the following question: "Now if he [Dr. Cerino] had told you [of] the presence of tuberculosis would you have submitted to the operation?" The court sustained an objection to that question. Appellants contend that the question was a relevant one and that the trial court erred in ruling that Paige's answer was inadmissible.

In making this argument, ...