Suburban Hospital, Inc. v. Kirson

Decision Date27 October 1999
Docket NumberNo. 1629,1629
Citation128 Md. App. 533,739 A.2d 875
PartiesSUBURBAN HOSPITAL, INC., et al. v. Phyllis R. KIRSON.
CourtCourt of Special Appeals of Maryland

Michael I. Joseph (Godard, West & Adelman on the brief, Suburban and Smith), Rockville, for appellants.

H. Kenneth Armstrong (Armstrong, Donohue, Ceppos & Vaughn on the brief, Aparangi), Rockville, for appellants.

John F.X. Costello (McCarthy, Bacon and Costello, LLP on the brief), Lanham, for appellee.

Argued before MOYLAN, HOLLANDER and SALMON, JJ.

MOYLAN, Judge.

Suburban Hospital, Inc., Mary Beth Smith, and Aparangi Paul, the appellants/cross-appellees, challenge a judgment in the Circuit Court for Montgomery County, Judge Nelson W. Rupp, Jr. presiding, whereby a jury awarded Phyllis R. Kirson, the appellee/cross-appellant, $130,500 in her medical malpractice suit. The issues raised on appeal are:

1) Did the trial court err in denying Suburban Hospital's and Smith's Motions for Judgment Notwithstanding the Verdict based on the exclusivity provision of the Workers' Compensation Act?

2) Did the trial court err in denying Smith's Motion for Judgment Notwithstanding the Verdict because there was insufficient evidence as a matter of law to establish Smith's negligence?

3) Did the trial court err in refusing the appellants' request to admit testimonial and documentary evidence of prior payments made by Suburban Hospital to or on behalf of Kirson and in consequently failing to reduce the verdict to reflect those previous payments?

4) Did the trial court err in permitting certain cross-examination of Susan Howell, R.N., one of the appellants' expert witnesses?

5) Did the trial court err in permitting the ostensibly leading questioning of Kirson's expert witness Dr. Antoni Goral?

Kirson, as cross-appellant, raises the following issues:

6) Did the trial court err in permitting the ostensibly irrelevant testimony of Dr. Clifford Hinkes, an expert for the defense?

7) Did the trial court err in granting Anderson's Motion for Judgment Notwithstanding the Verdict?

8) Should this Court dismiss the appellants' appeals?

FACTUAL AND PROCEDURAL BACKGROUND

On August 6, 1993, Phyllis R. Kirson ("Kirson"), a sixty-year-old nurse at Suburban Hospital, fell in the operating room during the course of her employment. As a result of the fall, Kirson suffered a fractured right femur just above a right total knee prosthesis1 and was admitted as a patient to Suburban Hospital. On August 7, Kirson underwent surgery at Suburban Hospital to repair the fractured femur. Six days later on August 13, Kirson, while still a patient, fell in her hospital room while being assisted in the use of a bedside toilet.

At the time of the August 13 fall, Mary Beth Smith ("Smith") was the nurse assigned to Kirson, Mary Anderson ("Anderson") was the charge nurse on duty, Aparangi Paul ("Paul") was a patient care technician, and Carol Stephens ("Stephens") was the patient care manager of the orthopaedic unit. As a result of the fall, an internal fixation device that had been placed in Kirson's leg during the August 7 surgery came loose. Kirson was therefore required to undergo a revisionary surgical procedure on August 23, 1993, during which time Dr. Antoni Goral, an orthopaedic surgeon, inserted a new plate along with three new screws in Kirson's leg.

The parties disputed the circumstances surrounding Kirson's fall in her hospital room on August 13. According to Kirson, she, while in her room, notified hospital personnel by pushing a call light that she needed assistance. Paul and an unnamed nurse responded. Kirson was assisted out of bed and to a bedside toilet. Paul and the nurse left the room so Kirson could use the toilet. Kirson once again pushed the call light and Paul alone responded. Paul assisted Kirson to a standing position. Once she was standing, Kirson complained of feeling light-headed and dizzy. Paul accordingly instructed Kirson to sit back down, which she did. Paul then got a walker, again assisted Kirson to a standing position, removed the toilet from the bedside, and left the room. Kirson was left standing alone with the walker when she fell.

Paul, on the other hand, testified that she alone responded to Kirson's first call for assistance. Paul helped Kirson out of bed without incident and she stayed with Kirson while Kirson used the toilet. Paul then assisted Kirson to a standing position and to a walker, at which time Kirson complained of feeling light-headed and dizzy. Paul instructed Kirson to sit down, which Kirson did. Paul pushed the call light to request additional assistance. It was while waiting for assistance that Kirson stood back up and fell.

Kirson subsequently filed suit in the Circuit Court for Montgomery County, charging 1) Suburban Hospital, 2) Paul, 3) Smith, 4) Anderson, and 5) Stephens with negligence. In that lawsuit, Kirson alleged that she developed hardware bursitis as a direct result of the revisionary surgical procedure performed following her August 13 fall. As a result of the hardware bursitis, Kirson had to have some of the pins in her right leg removed in March of 1994. As a result of the March 1994 procedure, Kirson developed an infection in her knee prosthesis. The following September, her knee prosthesis was removed and a new one was inserted in October.2 At trial, it was contested whether Kirson's bursitis and subsequent knee prosthesis replacement were a direct result of the August 13 fall or whether the bursitis would have developed regardless of the August 13 fall.

The case was tried before a jury beginning on June 8, 1998. All of the defendants moved for judgment at the close of Kirson's case and again at the close of all of the evidence. Paul's motion was denied. The court reserved its decision on the other defendants' motions for judgment and submitted the case to the jury. On June 12, 1998, the following verdicts were returned:

1) The jury found in favor of Kirson and against Paul, Smith, and Anderson;

2) The jury found against Kirson and in favor of Stephens;3

3) The jury found against Kirson and in favor of Suburban Hospital on the issue of independent negligence; and

4) Judgment was entered against Suburban Hospital for being vicariously liable for the actions of its employees—Paul, Smith, and Anderson.

The jury awarded Kirson a total of $130,500—$27,500 for past medical expenses, $28,000 for past loss of earnings, $75,000 for noneconomic damages, and $0 for loss of future earnings.

On June 22, 1998, Suburban Hospital, Smith, and Anderson filed a Motion for Judgment Notwithstanding the Verdict ("JNOV") as well as a Motion for Remittitur. On August 13, the court granted the Motion for JNOV as to Anderson only and denied all other requested relief. This appeal and cross-appeal were subsequently noted.

THE MOTION TO DISMISS THE APPEALS

Before reaching any of the substantive issues before us, we address preliminarily the last contention raised by Kirson in her cross-appeal—1) that Paul's appeal should be dismissed because she "did not raise any issue contained in the [appellants'] brief," and 2) that Suburban Hospital's and Smith's appeal should be dismissed for failure to file a proper record extract. Neither contention warrants a dismissal.

As to the dismissal of Paul's appeal, we note that on the cover page of the joint appellate brief Paul is listed as an appellant and H. Kenneth Armstrong is listed as her counsel. Merely because Paul has chosen to adopt the arguments made by Suburban Hospital and Smith and not to raise any additional issues unique only to her does not mean, as Kirson contends, that Paul has "failed to file a brief... in violation of [Maryland Rules] 8-502(a)(1), 8-502(b), and 8-502(d)." None of the provisions of the rule cited by Kirson applies. All three of the aforementioned subsections deal with the filing of an appellate brief: subsection (a) is entitled "Duty to file; time;" subsection (b) is entitled "Extension of time;" and subsection (d) is entitled "Default." What Kirson overlooks is subsection (a)(7) of Rule 8-502, which provides:

Multiple appellants or appellees. In an appeal involving more than one appellant or appellee, including actions consolidated for purposes of the appeal, any number of appellants or appellees may join in a single brief.

(Emphasis supplied). Thus, Paul did file a brief in a timely manner in conformity with Rule 8-502(a)(7).

Kirson also contends that this Court should dismiss the appeal of Suburban Hospital and Smith because they have failed to include within their record extract (1) transcripts of the hearings on the motions for summary judgement, (2) "material portions" of the testimony of Susan Howell, and (3) any portions of their motions for summary judgment or Kirson's opposition to their motions for summary judgment. Kirson claims that "[w]hile dismissal of the appeal is not normally appropriate, it may be in this matter."

All of the omissions by the appellants complained of by Kirson, however, were cured by Kirson's Appendix to her brief. Any potential gap in the record caused by the failure of the appellants to include certain pertinent information within the record extract was, therefore, rectified by the inclusion of those materials in Kirson's Appendix. Rule 8-501(m) provides that "[o]rdinarily, an appeal will not be dismissed for failure to file a record extract in compliance with this rule." Because we have been supplied with all of the information necessary to decide the issues before us on appeal, dismissal is not warranted. See Thanos v. Mitchell, 220 Md. 389, 393, 152 A.2d 833 (1959)

(Motion to dismiss appeal denied where "the appellee in his appendix furnished the material which he claims should have been printed by the appellant."); Burdette v. LaScola, 40 Md. App. 720, 736, 395 A.2d 169 (1978) ("While the appellants' record extract is deficient, that deficiency has been corrected by the appellees' printing of an...

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6 cases
  • Hoffman v. Stamper
    • United States
    • Court of Special Appeals of Maryland
    • February 27, 2004
    ...motions for JNOV are identical. See Giant Food, Inc. v. Booker, 152 Md.App. 166, 176, 831 A.2d 481 (2003); Suburban Hosp., Inc. v. Kirson, 128 Md. App. 533, 542, 739 A.2d 875 (1999). Because they are questions of law, we review them de novo. Muthukumarana v. Montgomery County, 370 Md. 447, ......
  • Suburban Hospital v. Kirson, 2
    • United States
    • Maryland Court of Appeals
    • December 8, 2000
    ...work-related injury. The Court of Special Appeals, applying the "dual capacity" theory, denied the defense. Suburban Hosp. v. Kirson, 128 Md.App. 533, 552, 739 A.2d 875, 885 (1999). That court viewed the employer "in its capacity as an employer and ... in its capacity as a health care provi......
  • Giant Food, Inc. v. Booker
    • United States
    • Court of Special Appeals of Maryland
    • September 3, 2003
    ...for judgment and a motion for judgment notwithstanding the verdict ("JNOV") under the same appellate lens. Suburban Hosp., Inc. v. Kirson, 128 Md.App. 533, 542, 739 A.2d 875 (1999) (citations omitted), rev'd on other grounds, 362 Md. 140, 763 A.2d 185 (2000). In order to survive a motion fo......
  • Payne v. Galen Hosp. Corp.
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    • August 24, 2000
    ...dual-capacity doctrine as we have defined it. See Wright v. District Court, 661 P.2d 1167, 1168 (Colo. 1983); Suburban Hosp., Inc. v. Kirson, 739 A.2d 875, 883 (Md. Ct. App. 1999), cert. granted, 747 A.2d 644 (Md. 2000); Guy v. Arthur H. Thomas Co., 378 N.E.2d 488, 492 (Ohio 1978); Weber v.......
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