Raitt v. Johns Hopkins Hospital

• Decision Date: 14 April 1975
• Docket Number: No. 169,169
• Citation: 274 Md. 489,336 A.2d 90
• Parties: Anna M. RAITT et vir. v. The JOHNS HOPKINS HOSPITAL et al.
• Court: Maryland Court of Appeals

Page 489

274 Md. 489

336 A.2d 90

Anna M. RAITT et vir. v. The JOHNS HOPKINS HOSPITAL et al.

No. 169.

Court of Appeals of Maryland.

April 14, 1975.

Marvin Ellin, Baltimore (Jonathan Schochor and Henry E. Dugan, Jr., Baltimore, on the brief), for appellants.

Hugh E. Donovan, Rockville (William A. Ehrmantraut, Rockville, on the brief), for The Johns Hopkins Hospital, part of appellees, and by John F. King, Baltimore, for Andrew C. Montague, other appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

LEVINE, Judge.

The unfortunate chain of events culminating in this appeal commenced on May 15, 1972, when appellant, Anna M. Raitt (the patient), underwent a laparoscopy tubal ligation, a birth control procedure performed by appellee Montague (the physician) at the Johns Hopkins Hospital (the hospital). As a result of complications which developed from that operation, she filed suit against appellees in the Baltimore City Court claiming damages for their alleged negligence. The case was removed to the Circuit Court for Montgomery County where the trial commenced on January 28, 1974, before a jury presided over by Judge Joseph M. Mathias, ultimately resulting in a directed verdict for both appellees. On appeal to the Court of Special Appeals judgment was affirmed in Raitt v. Johns Hopkins Hospital, 22 Md.App. 196, 322 A.2d 548 (1974). We then granted a Writ of Certiorari.

Because of the limited scope of the issues presented on this appeal, it is unnecessary for us to include an extensive review of the facts upon which the alleged negligence is based. The declaration alleges that appellant was an outpatient at Johns Hopkins while the procedure was performed. Dr. Montague informed her that since the operation would require less than one hour, she would be free to return to her home on that same day. Experiencing severe stomach pain, however, she complained upon regaining consciousness to various hospital personnel, including physicians and nurses in whose care she had been placed by Dr. Montague during his absence from the hospital. They assured her that these symptoms were usual and customary for this type of procedure and, against her wishes, released her that day.

On the following day, the patient's daughter telephoned the physician and informed him of the persistent abdominal pain and a developing condition of nausea. He advised her that the pain was normal for this procedure, and attributed the nausea to a virus. He called a pharmacy and prescribed a pain-relieving drug for the abdominal discomfort and a medication for the virus. Later that day, after being informed that the patient's condition had become intolerable, the physician yielded to her request that she be allowed to report to the emergency room at the hospital. Upon arriving there, the patient was subjected to various tests and examinations which revealed that as a result of alleged negligence in the performance of the laparoscopy and tubal ligation, she had sustained a perforation in the bowel. This, in turn, had caused peritonitis and a resulting infectious process, which had spread throughout her body.

In consequence of the perforation and the alleged failure to repair it promptly, the patient underwent surgery-two days after the initial procedure-resulting in the excision of a portion of the intestine. Also, because of the injury and the consequent deterioration of her health, blood clots developed which entered her lungs. It was necessary for her to remain confined to the hospital until June 24, 1972. Later, she was also admitted to Temple University Hospital in Philadelphia for study and treatment.

The trial of the case in the circuit court commenced with elaborate opening statements by counsel for the respective parties. Appellant then produced as her first witness, a Doctor Marshall Klavan of Philadelphia, who, following graduation from the Medical College of Virginia, had served a one-year internship and a four-year residency in obstetrics and gynecology at Sinai Hospital in Baltimore. He then began to practice privately in his specialized field in the Philadelphia area. He holds a full professorship in that specialty at Hahnemann Medical College in Philadelphia, and is chairman of the same department at the Crozer Medical Center, a teaching hospital in Chester, Pennsylvania. He is 'board-certified' in his field, i. e., he is certified by the American Board of Obstetrics and Gynecology. In addition, he holds memberships in a number of medical societies and professional groups. He is not licensed to practice medicine in Maryland, and has never maintained an office in this state.

After the witness's background had been presented and he had been subjected to voir dire examination, the court ruled that he was qualified to testify as an expert in the field of gynecology. A proffer was then made to show that the witness was qualified to testify concerning the standard of medical care to be applied in this case. As part of this proffer, it was asserted that the certifying examinations of the American Board of Obstetrics and Gynecology are uniform throughout the country; that Dr. Klavan had treated patients from Maryland, and had therefore been required to review their Maryland hospital charts; that he was also acquainted with Maryland standards through his attendance at professional meetings with colleagues from this area-including Baltimore-at which views had been exchanged on the subjects involved here; and that through other professional contacts, he had concluded that the standard of care in Baltimore and Philadelphia for the surgical procedure followed here is the same, indeed, that there is a single national standard.

When the court indicated that it would preclude Dr. Klavan from presenting any testimony concerning the applicable standard of care in the Baltimore community, appellant, with the consent of appellees, enlarged her proffer to include also the proposed testimony of three other medical witnesses from Philadelphia, who were prepared to testify that for reasons similar to those furnished by Dr. Klavan, they were familiar with the standard of care applicable to the Baltimore community on the date of the operation performed here; and that this standard, which was the same throughout the country, had been breached in this case.

After hearing extensive argument from counsel, the trial court ruled that none of the four medical witnesses tendered by appellant was qualified 'to express opinions as to the standards of care in the City of Baltimore in the performance of the surgical procedure which is in question in this case.' It arrived at this conclusion because none of the witnesses had ever practiced in Maryland; had ever enjoyed any hospital privileges in Maryland; or had ever maintained an office in this state. The court rejected Dr. Klavan's five-year experience as an intern and resident at Sinai Hospital because the particular procedure involved here, a laparoscopy, had not yet been developed at that time. This colloquy then ensued:

'(Mr. Ellin) Your Honor, I take it, then, this prevents the Plaintiff from going forward because these are the witnesses, the only remaining physician is a treating family doctor in Baltimore, Dr. Kolodny, who I did not intend to question as to the performance of laparoscopic procedures because he is not an obstetrician or gynecologist.

'So, since the Plaintiffs cannot go forward it would seem, then, Your Honor, that the Defendants anticipated motion for directed verdict forthcoming would have to be granted and I would urge that we have no other evidence on which this case could get to the jury to save the Court time and everybody else time.

'(The Court) Does the Plaintiff rest its case?

'(Mr. Ellin) The Plaintiff would rest, in view of Your Honor's ruling.

'(Mr. Ellin) I am responding to the Court's ruling of barring my witnesses from testifying, so that the Plaintiff must rest. It is unable to go forward with this particular witness.

'(The Court) I am not barring your witnesses from testifying. I am simply saying that in my opinion none of your proposed witnesses can qualify as experts to offer an opinion upon the standards of care of a doctor in Baltimore City performing this particular surgical procedure.

'(Mr. Ellin) That is what the case is about, so the Plaintiff rests.'

On appeal, the Court of Special Appeals expressed its disagreement with the ruling of the trial court insofar as that decision was 'based upon the fact that the witnesses proffered did not practice in the community in which the alleged negligent treatment occurred.' Raitt v. Johns Hopkins Hospital, supra, 22 Md.App. at 203, 322 A.2d at 553. Nevertheless, the Court of Special Appeals affirmed the circuit court judgment because appellant, although proffering to show a lack of requisite skill or care, had failed to 'establish a direct causal connection between any want of requisite skill and care on the part of (appellees) and the injury to (appellant).' Id. at 214, 322 A.2d at 559. Initially, therefore, we consider the correctness of this holding.

(1)

As we have indicated, in holding that the directed verdict was properly granted, the Court of Special Appeals held that, although establishing by her proffer that appellees had not exercised the requisite skill or care, appellant rested her case without establishing the other element required for a prima facie cause of action for medical malpractice-a causal connection between the want of skill or care and the injury.

This holding is challenged by appellant, who contends that the second component of her case was supplied in these various ways: By statements of her counsel in his opening address to the jury and during the extensive proffer concerning the out-of-state physicians; by hospital records which had been introduced into evidence; and by admissions of counsel for the appellees made in their opening...