Pepper v. Johns Hopkins Hosp.

• Decision Date: 01 September 1995
• Docket Number: No. 1241,1241
• Parties: Travis PEPPER, a minor, etc., et al. v. The JOHNS HOPKINS HOSPITAL. ,
• Court: Court of Special Appeals of Maryland

Page 49

111 Md.App. 49

680 A.2d 532

Travis PEPPER, a minor, etc., et al. v. The JOHNS HOPKINS HOSPITAL.

No. 1241, Sept. Term, 1995.

Court of Special Appeals of Maryland.

May 31, 1996.

Reconsideration Denied Aug. 29, 1996.

Certiorari Granted Dec. 23, 1996.

C. Holly Buckley (Joanne L. Suder and Suder & Suder, P.A., on the brief), Baltimore, for Appellants.

Howard A. Janet, Baltimore, for Appellant, Travis Pepper.

Howard A. Janet, Wayne M. Willoughby and Janet & Strausberg, Baltimore, for amicus curiae, Maryland Trial Lawyers' Association.

Joseph G. Finnerty, Jr. (William L. Reynolds, Tracey Gann Turner and Piper & Marbury L.L.P., on the brief), Baltimore (of counsel: Richard P. Kidwell, Baltimore, on the brief), for Appellee.

Argued before WILNER, C.J., and BLOOM and SALMON, JJ.

SALMON, Judge.

Travis Pepper ("Travis"), a minor, and his parents, Linda and Terry Pepper ("the Peppers"), individually and as next friends of Travis, filed a complaint in the Circuit Court for Baltimore City on March 24, 1993 alleging that appellee, Johns Hopkins Hospital (Hopkins), was negligent in its care and treatment of Travis in 1987. At the request of Hopkins, the trial court granted a motion in limine that had the effect of precluding the introduction of any evidence of medical expenses incurred by Travis as a result of Hopkins's claimed negligence. After a two-week trial, the jury found that Hopkins had been negligent. ¹ The jury awarded Travis $750,000 for non-economic damages, which was reduced to $350,000 pursuant to the statutory cap. ² The jury did not award future lost earnings because it determined that Travis would not "live to an age at which a person could ordinarily become gainfully employed." Linda and Terry Pepper, as parents and next friends of Travis, filed this timely appeal and ask the following questions, ³ which we have rephrased for clarity:

I. Did the trial court err by granting appellee's motion in limine?

II. Did the trial court err by precluding appellants' expert from testifying as to Travis's life expectancy while allowing appellee's expert to testify?

We answer the first question in the affirmative and the second in the negative, and we remand this case for a new trial on the issue of Travis's medical expenses only.

FACTS

Travis was born on January 6, 1987 with severe heart and circulatory problems. He had a narrowing of the opening between the pulmonary artery and the right ventricle, which resulted in decreased levels of blood flowing into his lungs. He also had a hole in the wall of his heart between the left and right ventricles. In medical parlance, Travis suffered from tetralogy of Fallot with pulmonary atresia. Travis's doctors at Hopkins suggested two stages of surgery to correct these problems. First, he would undergo right ventricular out-flow tract reconstruction to increase the flow of blood from his heart through his pulmonary artery. A second surgery would repair the hole in his heart.

Travis underwent the right ventricular out-flow tract reconstruction at Hopkins on April 15, 1987. He developed post-operative complications resulting in severe neurological impairment. He has not undergone the second surgery.

The Peppers filed a six-count complaint against Johns Hopkins on March 23, 1993, almost six years after the surgery. Count I was a negligence action, brought by Travis, "by and through his Parents," which alleged that Hopkins was negligent in performing the surgery on Travis at such a young age and in failing to recognize and treat his post-surgery complications. Count I included the following allegations:

As a direct and proximate result of the negligence of Defendant Hospital, Travis suffered and will continue to suffer permanent and severe damages to his body and nervous system, including but not limited to, severe lack of vision, seizures, severe cerebral palsy, anoxic encephalopathy, spastic quadriparesis, brain damage, severe mental and motor retardation, spasticity, loss of mobility, and other related disabilities, which have in the past necessitated and will in the future necessitate expenses for: physical therapy and testing, frequent medical evaluation and care, medical treatment, special functional instruction and personal attendance and care. As a direct and proximate result of the negligence of the defendants [sic] ..., Travis will, upon attaining maturity, suffer loss of earnings and impairment of earning capacity and other pecuniary and/or economic damages. Further ... Travis has suffered and will in the future suffer the loss of ability to lead a normal life, pain, suffering, mental anguish, embarrassment, humiliation and disfigurement, all of which is permanent, and other injuries and damages.

....

WHEREFORE, Plaintiff, Travis Pepper, by and through his Parents, Guardians, and Next Friends, Terry and Linda Pepper, bring this action against the Defendants and claim compensatory damages ..., costs and such other and further relief as the Court may deem necessary and proper.

Counts II and III were negligence causes of action brought by Linda and Terry Pepper, respectively, for Travis's medical expenses; counts IV and V alleged lack of informed consent by Travis and the Peppers, respectively. The final count, also captioned count V, alleged loss of consortium by the Peppers.

Hopkins filed a motion for partial summary judgment on June 2, 1993, alleging that the Peppers' claims were time-barred. The trial court granted the motion as to counts II, III, and both counts V (lack of informed consent and loss of consortium). Thus, only Travis's claims for negligence and lack of informed consent were left after the grant of partial summary judgment.

Appellants filed an amended complaint on June 13, 1994. The amended complaint included an allegation, appended to Travis's claim for negligence, that "Travis' parents, Terry and Linda Pepper, are financially unable to provide for the past and future care and treatment Travis will require and need as a direct and proximate result of the negligence of the Defendant, its agents, servants and/or employees." Hopkins filed a motion to strike, arguing that the amended complaint "was filed much too late and well after the time set by this Court for providing notice of any intent to amend. Discovery is closed and there is no time in which to start over." ⁴ The trial judge granted the motion to strike on June 23, 1994.

On the first day of trial, July 11, 1994, Hopkins's counsel orally made a motion in limine requesting that "no evidence of medical expenses ... go the jury because they are irrelevant to any recovery." Hopkins argued that a cause of action for recovery of any medical expenses already incurred and those expected to be incurred in the future belonged to the Peppers and, therefore, evidence of medical expenses was irrelevant to Travis's causes of action, the only ones left at trial. Appellants countered by asserting that Travis had a cause of action to recover his medical expenses, comprising 90 percent of the damages alleged in the suit, and that the evidence as to those expenses should be considered by the jury. The trial judge granted the motion in limine the following day.

The case proceeded to trial on the issues of liability and damages, which were limited to Travis's lost future income and non-economic damages.

DISCUSSION

I.

Appellants are not appealing the trial court's grant of the motion to strike the amended complaint.

Appellants frame the first issue presented as whether the trial judge erred in granting Hopkins's motion in limine. Once a party has made a motion in limine requesting that certain evidence be kept from the jury, the appropriate response by the opposing party is a proffer of the evidence that it seeks to introduce. Lewis v. State, 71 Md.App. 402, 414, 526 A.2d 66 (1987); Standifur v. State, 64 Md.App. 570, 578-79, 497 A.2d 1164 (1985), aff'd, 310 Md. 3, 526 A.2d 955 (1987). We find that appellants responded to the motion with a legally adequate proffer. Thus the issue was appropriately preserved for review, and Hopkins does not contend otherwise. ⁵

A. Pre-Majority Expenses

It is well settled that when a minor is negligently injured two separate causes of action arise: the minor child has one for the injuries he or she suffered, and the parent of the minor child has one for medical expenses incurred by the parent for treatment of his or her child's injuries. Garay v. Overholtzer, 332 Md. 339, 346, 631 A.2d 429 (1993). Generally, the minor child does not have a cause of action for his medical expenses because the "parents possess the exclusive right to recover a minor's pre-majority medical expenses." Id. at 367, 631 A.2d 429.

Hopkins argued in support of its motion in limine that medical expenses could not be recovered by Travis

because he is not liable [for such expenses] and he never will be liable. You have to be liable to recover it as an element of damages.

... The only claim we have here [after the partial summary judgment] is by this child, and the law says this child is not entitled to recover medical expenses because he is not now and never will be liable for them, period.

The law in Maryland is that there are four exceptions under which a minor may have a cause of action to recover his medical expenses (1) when the minor child has paid or agreed to pay the expenses, (2) when the minor child is legally responsible for payment, such as by reason of emancipation, or the death or incompetency of his parents, (3) when the parents have waived or assigned their right of recovery in favor of the minor child, or (4) when recovery of expenses is permitted by statute.

Id. at 366, 631 A.2d 429 (footnote omitted). The first, second and fourth exceptions noted above give a minor child a separate and distinct claim for his medical expenses. Id. at 366-67, 631 A.2d 429.

Generally, contractual obligations of minors are voidable. McBriety v. Spear, 191 Md. 221, 60 A.2d 528...