Suburban Hospital Ass'n, Inc. v. Hadary

• Decision Date: 19 July 1974
• Docket Number: No. 919,919
• Citation: 22 Md.App. 186,322 A.2d 258
• Parties: SUBURBAN HOSPITAL ASSOCIATION, INC., et al. v. Joseph HADARY et ux.
• Court: Court of Special Appeals of Maryland

Page 186

22 Md.App. 186

322 A.2d 258

SUBURBAN HOSPITAL ASSOCIATION, INC., et al. v. Joseph HADARY et ux.

No. 919.

Court of Special Appeals of Maryland.

July 19, 1974.

William N. Zifchak, Rockville, with whom were William N. Rogers, Carr, Bonner, O'Connell, Kaplan & Thompson, Rockville, on the brief for appellant Suburban Hospital Association, Inc.

Thomas J. Scanlon, Mount Rainier, for other appellant.

James D. Newton, Silver Spring, for appellees.

Argued before MORTON, MENCHINE and LOWE, JJ.

MENCHINE, Judge.

Norma T. Hadary (Patient) sued Suburban Hospital Association, Inc. (Hospital) and Sidney J. Malawer, M.D. (Doctor) for damages for personal injuries allegedly resulting from negligent hospital and medical treatment. Norma T. Hadary and her husband jointly sued the Hospital and the Doctor for loss of consortium alleged to have been produced by such injuries. The case was tried before a jury in the Circuit Court for Montgomery County, Joseph M. Mathias, J., presiding.

The jury returned a verdict in favor of Norma T. Hadary for $15,000, and a joint verdict in favor of Joseph Hadary and Norma T. Hadary for $1,000 against both Hospital and Doctor. From the judgments thereafter entered both Hospital and Doctor have appealed. Both contend that the evidence was legally insufficient to show negligence. Doctor also suggests error in the court's instruction and errors in the exclusion of evidence.

Sufficiency of the Evidence

Norma T. Hadary had suffered from psoriasis from about 1964 or 1966. She said that the disease evidenced itself by spots over the trunk or torso, on the thighs and in her scalp, inside her ears, in the corner of the nose, on her elbows. She said her toenails thickened and became deformed and distorted. She said her skin was rough and scaly. When treatment by other doctors failed to produce improvement, she consulted a firm of dermatologists. On November 15, 1967, under their care, a course of methotrexate therapy was commenced. The methotrexate therapy was effective in controlling the psoriasis to the point that her dermatologist said represented 75 to 80% improvement. He said also that from an aesthetic point of view, her appearance also had improved considerably at the time of the occurrence complained of.

Methotrexate therapy for psoriasis was described as posing a potential hazard to a patient's liver. Accordingly, to rule out liver damage from the therapy, her dermatologist on May 12, 1970 referred Patient to Dr. Sidney J. Malawer, one of the appellants, for a liver biopsy. Mrs. Hadary entered Suburban Hospital on Dr. Malawer's service on June 4, 1970 and on the morning of June 5, 1970 a liver biopsy was performed by Doctor in Patient's hospital room. The doctor was assisted by a nurse whose identity was not disclosed at trial.

The biopsy required insertion of a menghini needle into the liver. A syringe attached to the needle withdrew liver tissue into the bulb of the needle for laboratory analysis. That analysis showed the liver to be entirely normal. Patient remained in the hospital until her discharge at 11:30 a. m. on June 6, 1970. On that afternoon Doctor telephoned, advising Patient that a nurse had told him that the needle used at biopsy may not have been sterile. Doctor explained that because the needle may have been used on another person suffering from a liver disease, Patient may have been exposed to a risk of infectious hepatitis.

Patient then was required to undergo a series of massive gamma globulin injections. These injections, continuing from June through November, 1970, were described as extremely painful. It was necessary also to suspend methotrexate therapy for her psoriasis during the course of the gamma globulin injections because continuance of that therapy would confuse the required tests incident to the anti-hepatitis procedures. In consequence, Patient's psoriasis worsened, becoming more severe and more widely spread than it had ever been. It was not until December 11, 1970 that it was possible for methotrexate therapy to be resumed and another year before the level of improvement she had reached on June 5, 1970 again had been achieved.

Patient's dermatologist testified (without evidence to the contrary) that discontinuance of methotrexate therapy was essential to the use of gamma globulin injections and that such discontinuance caused the worsening of Patient's psoriasis.

It was also uncontradicted that gamma globulin injections were required solely because of doubt concerning sterility of the menghini needle. It was conceded that a sterile needle should be used in making a liver biopsy.

In short, the causal connection of the biopsy operation; the concomitant necessity for gamma globulin injections; and the cessation of methotrexate therapy to the Patient's worsened psoriasis was clearly shown by the evidence. Both Hospital and Doctor, however, contend that it was not shown that either was negligent. Both contend that there has been no showing that there had been a breach of the community standard of care by either. Each urges that expert testimony to such effect was a requisite to recovery and that in its absence the case should have been withdrawn from the jury as to both appellants.

An annotation in 81 A.L.R.2d at page 601 declares that:

'The overwhelming weight of authority supports the view that ordinarily expert evidence is essential to support an action for malpractice against a physician or surgeon.'

In the same annotation it is stated at page 608:

'In cases in which a physician's or surgeon's want of skill or lack of care has been such as to be within the comprehension of layman and to require only common knowledge and experience to understand and judge it, it has been held that expert evidence was not required to make out a case against the physician or surgeon for malpractice.'

A similar general rule and exception as to claims asserted against hospitals is declared in an annotation in 40 A.L.R.3d:

(Page 520) (The rule)

'Numerous cases have taken the position that expert evidence is ordinarily necessary to support an action against a hospital for injury or death of a patient, at least where the particular acts, omissions, or other circumstances required to be shown involve technical or complex matters of opinion.'

(Page 523) (The exception)

'Numerous cases have taken the position that where a hospital's negligence was such as to be within the comprehension of laymen and to require only common knowledge and experience to understand and judge it, expert evidence is not required to make out a case against a hospital for the injury or death of a patient resulting from such negligence.'

It is quite plain that Maryland recognizes both the rule and the exception. In Thomas v. Corso, 265 Md. 84, 288 A.2d 379, the Court of Appeals discussed the subject in some depth, saying at pages 97, et seq., 288 A.2d at pages 387, 388:

'Although in many medical malpractice cases expert testimony is required to be introduced by the plaintiff to establish the standard of care in the locality involved, see Johns Hopkins Hospital v. Genda, 255 Md. 616, 258 A.2d 595 (1969), involving an intricate open heart operation and a broken fragment of needle left in the patient's chest, it is well recognized by the Maryland cases that there may be cases in which no expert testimony is required to establish the standard of care or its breach by the physician. We discussed the law in this regard in Central Cab Co. v. Clarke, 259 Md. 542, 551-552, 270 A.2d 662, 667-668 (1970). We stated:

'The situation in the instant case (involving the malpractice of an attorney in failing to notify his client of his termination of employment whereby a default judgment was obtained against the client) is analogous to cases involving medical malpractice in which a dentist pulled a wrong tooth, and our predecessors held in affirming a judgment for the plaintiff that there was no necessity for expert testimony to establish that a dentist should not pull the wrong tooth. McClees v. Cohen, 158 Md. 60, 148 A. 124 (1930). The same rule applies in cases in which physicians have done an obviously negligent act such as accidentally amputating the wrong arm, or negligently leaving a sponge in a patient's body. Rural Educational Ass'n v. Bush, 42 Tenn.App. 34, 298 S.W.2d 761 (1956) and Frederickson v. Maw, 119 Utah 385, 227 P.2d 772 (1951).

'In Butts v. Watts, 290 S.W.2d 777, 779 (Ky.1956), it was stated: 'There is a limitation on the rule that expert testimony is essential to support a cause of action for malpractice where the common knowledge or experience of laymen is extensive enough to recognize or infer negligence from the facts.'

'See also Johns Hopkins Hospital v. Genda, 253 Md. 616, 258 A.2d 595 (1969) holding that expert testimony was necessary in that medical malpractice case involving a complicated operative technique in regard to heart surgery, but contrasting the case with medical malpractice cases of carelessly dropping a scalpel or knife on a patient causing him to be cut or dropping acid carelessly on a patient causing him to be burned.'

'See also Fink v. Steele, 166 Md. 354, 361, 171 A. 49, 52 (1934); 81 A.L.R.2d 597, 'Necessity of expert evidence to support an action for malpractice against a...