Suburban Hospital v. Kirson, 2

• Citation: 362 Md. 140,763 A.2d 185
• Decision Date: 08 December 2000
• Docket Number: No. 2,2
• Parties: SUBURBAN HOSPITAL, INC. et al. v. Phyllis R. KIRSON.
• Court: Court of Appeals of Maryland

763 A.2d 185

362 Md. 140

SUBURBAN HOSPITAL, INC. et al. v. Phyllis R. KIRSON.

No. 2, Sept. Term, 2000.

Court of Appeals of Maryland.

December 8, 2000.

Michael I. Joseph (S. Allan Adelman, Godard, West & Adelman, Rockville; H. Kenneth Armstrong, Armstrong, Donohue, Ceppos & Vaughan, Rockville), on brief, for petitioners/Cross-Respondents.

John F.X. Costello (McCarthy & Costello, LLP, on brief), Lanham, for Respondent/Cross-Petitioner.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY,¹ RAKER, WILNER, CATHELL and HARRELL, JJ RODOWSKY, Judge.

Maryland Code (1991), Title 9 of the Labor and Employment Article (LE) is the Maryland Workers' Compensation Act (the Act). LE § 9-509 in part provides:

"(a) Employers.—Except as otherwise provided in this title, the liability of an employer under this title is exclusive.

"(b) Covered employees and dependents.—Except as otherwise provided in this title, the compensation provided under this title to a covered employee or the dependents of a covered employee is in place of any right of action against any person."

We granted certiorari in this action primarily to determine whether an employer-hospital enjoys the exclusivity defense under § 9-509 where the employer is sued by an employee for tort damages for personal injuries resulting from the negligent medical treatment of a 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 provider as discrete legal entities with no necessary relationship to each other." Id. at 547, 739 A.2d at 882.

In addition to the above issue of substantive law, the record in this case also reveals a failure to comply with the separate document requirement for the entry of judgment under Md. Rule 2-601. Nevertheless, we shall hold in Part II, infra, that there is appellate jurisdiction. With respect to the merits of the principal question, we shall hold in Part IV.C, infra, that workers' compensation is the employee's exclusive remedy against the employer-hospital for the negligent care.

I

The employer, Suburban Hospital, Inc. (Suburban), is a petitioner and cross-respondent in this Court. The employee, Phyllis R. Kirson (Kirson), is the respondent and cross-petitioner. Kirson fractured her right femur when, on August 6, 1993, she slipped and fell in the operating room at Suburban while she was working as a nurse. She was immediately taken to the Suburban emergency room and then admitted to that hospital. The next day Kirson underwent surgical repair which involved the insertion of a metal plate and screws at the break point, just above the total prosthesis that had replaced Kirson's right knee in 1991.

On August 13, 1993, Kirson, while recuperating from the August 7 surgery, fell in her hospital room at Suburban. It is undisputed before us that the immediate cause of the fall of August 13 was the negligence of Aparangi Paul (Paul), a patient care technician who is a petitioner in this Court. Nor is there any dispute over Suburban's vicarious liability for the negligence of Paul if Suburban does not enjoy the exclusivity defense. At the time of the August 13 fall one of the cross-respondents, Mary Beth Smith (Smith), was the nurse assigned to Kirson, and the remaining cross-respondent, Mary Anderson (Anderson), was the charge nurse on duty. Their tort liability is disputed.

Many complications followed Kirson's falls. Suburban, a self-insurer for workers' compensation, paid Kirson temporary total disability compensation from August 7, 1993, to May 10, 1995. Following a hearing, the Workers' Compensation Commission (the Commission), by an order dated November 29, 1996, found that Kirson had sustained an accidental injury arising out of and in the course of her employment on August 6, 1993. The Commission ordered that Suburban pay 129 weeks of permanent partial disability compensation and that the Subsequent Injury Fund then pay 146 weeks. The Commission ordered Suburban to pay all medical expenses.²

The present tort action was filed on July 11, 1996, accompanied by a waiver of arbitration under the Health Claims Arbitration Act. It is sufficient for present purposes to consider that the defendants, as named in an amended complaint filed on August 6, 1996, were Suburban, Anderson, Smith, Paul, and one Carol Stephens (Stephens) who is not a party to this appeal.

Suburban first raised the exclusivity defense in a motion for summary judgment filed sixteen months before trial. Anderson and Smith joined in the motion, contending that they were entitled to the defense because of their supervisory positions. In opposition Kirson argued the possible lack of a causal connection between the August 6 and August 13 falls, and she also argued the dual capacity doctrine. The circuit court, uncertain whether any facts that might be in dispute were material, denied the motion.³ About two weeks before trial Suburban renewed its motion for summary judgment on exclusivity grounds. In essence it contended that the general facts that we have set forth above were the only material facts. Kirson again argued the absence of a causal connection between the fall of the thirteenth and that of the sixth, and she again argued dual capacity. In colloquy with counsel at that hearing the court, in part, observed:

"The injury that [Kirson] suffered on August 13, it is clear to me, is a direct result—I mean, she is there being treated for the injury that occurred on August 6th. So, therefore, Suburban Hospital, as the employer—not as the hospital, but as the employer—benefits from the exclusivity provision of the [Act]."

Observing that "even though [it had] a difficult time finding a material fact that would allow the hospital to remain in this lawsuit," the circuit court denied the motion, saying, "I am going to let it go to the jury or at least we will start the jury trial with everybody in it."

At that same hearing Kirson moved in limine to prevent any mention of workers' compensation, opening her argument by saying, "If they are going to defend this on the exclusivity doctrine—." The court, however, interrupted and ruled, "That is a legal issue; that is not something that should be before the jury." When Suburban then argued that it should be entitled to demonstrate that it had paid $186,000 in compensation, the court ruled that this evidence was barred by the collateral source rule. The court stated, "I am not going to permit anything before the jury as to the amount of compensation that has been paid through the [Act]."

Accordingly, the action went to trial before the jury as one involving a claim of negligently inflicted injury (August 13) superimposed on a pre-existing condition (the break in the femur of August 6).

At trial Kirson gave the following description of the fall of August 13. Shortly after breakfast Paul and a nurse, whom Kirson believed to be Smith, responded to Kirson's call button. Kirson wanted to use the bedside commode. As she sat up at the edge of her bed, Kirson told the two caregivers that she was "`a little light-headed.' " The two assisted Kirson to the commode and told Kirson to push the button when she was ready to return to bed and someone would return to assist her. After using the commode, Kirson again pushed the call button, and only Paul responded. Before Kirson stood up she told Paul, "`I still feel a little dizzy.'" Paul told Kirson to "`wait a minute.'" From a corner of the hospital room Paul obtained a walker that had not been adjusted for Kirson's use. Paul placed the walker directly in front of Kirson so that she could stand while using the walker for support. When Kirson stood, Paul took the container out of the commode and started toward the bathroom to empty the container's contents. When Paul was about six feet from Kirson, the latter exclaimed, "`Oh, I feel dizzy.'" Kirson stated that she then reached for the walker, "but it was too high to ... support and it toppled, and I went and it went, and I began to scream...."

Kirson's principal orthopedic surgeon, Dr. Antoni B. Goral, testified as her medical expert. In the days following the fall of August 13 he had noted a progressive loss of fixation of the plate that had been inserted to mend the broken femur sustained in the August 6 fall. In order to correct this condition, that in his opinion was caused by the fall of August 13, revision surgery was required. On August 26 the surgeon entered through the same incision line made in the open reduction of the broken femur. Dr. Goral moved the existing plate lower, toward the replacement knee, and drilled three new holes for screws. This procedure involved a risk of bursitis, but the risk was unavoidable. Kirson was discharged from Suburban on October 8, 1993.

In February 1994 she was diagnosed with implant related bursitis. In Dr. Goral's opinion the bursitis was caused by dropping the plate down close to the femur prominence which caused soft tissue to rub on the plate. He recommended removal of certain screws from the plate which was done on March 18, 1994. Cultures taken at that time from the site of the surgery were negative for any infection.

In September 1994 Dr. Goral again operated on Kirson to replace the artificial right knee in order to lessen an outward bowing. While removing the artificial knee he found an infection, later identified as a staph epidemitis infection. Dr. Goral could not proceed with inserting a new replacement knee. He filled the knee cavity with antibiotic cement and placed Kirson on a program of antibiotics to clear the infection. When that was accomplished a new replacement knee was inserted on October 24, 1994. Kirson was discharged from the hospital in November. In Dr. Goral's opinion the infection resulted from the operation of March 18, 1994, which...