University of Md Medical Sys. Corp. v Malory

• Decision Date: 31 October 2001
• Docket Number: 1883
• Parties: UNIVERSITY OF MARYLAND MEDICAL SYSTEM CORPORATION v. JANET MALORY, PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMAL MALORY, A MINOR, ET AL
• Court: Court of Special Appeals of Maryland

UNIVERSITY OF MARYLAND MEDICAL SYSTEM CORPORATION v JANET MALORY, PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMAL MALORY, A MINOR, ET AL.

No. 1883

September Term, 2000

IN THE COURT OF SPECIAL APPEALS OF MARYLAND

Filed: October 31, 2001

Davis, Salmon, Eyler, Deborah S., JJ.

Opinion by Davis, J.

Appellees/cross-appellants Janet Malory (Janet), personal representative of the estate of decedent Jamal Malory (Jamal), and Markieta Malory (Markieta), mother of Jamal, brought suit against appellant/cross-appellee University of Maryland Medical System Corporation in the Circuit Court for Baltimore City on December 17, 1998. Both claims alleged medical malpractice, contending that appellant deviated from medical standards of care by failing to admit Jamal to the hospital on March 15, 1996 for overnight monitoring of his respiratory condition. As a result, appellees contended, Jamal died the next day March 16, 1996. Janet's claim was a survival action brought on behalf of Jamal's estate and Markieta's claim was a wrongful death action. The jury returned a verdict for appellees, awarding $3,500,000 to Markieta and $202,344 to Jamal's estate. Judgment on the verdict was entered on February 28, 2000. Pursuant to Md. Code (1995 Repl. Vol., 1998 Supp.), Cts. & Jud. Proc. (C.J.) § 11-108, however, the trial court reduced the wrongful death award to $515,000 the maximum allowed under the cap on non-economic damages. The modified judgment was entered on October 12, 2000. Appellant noted its timely appeal on October 16, 2000 and appellees noted their cross-appeal on October 20, 2000. Appellant raises four questions, which we rephrase for clarity as follows:

I. Did the trial court commit reversible error when it misled the jury with incorrect instructions on the law pertaining to wrongful death actions?

II. Did the trial court commit reversible error when it admitted into evidence the videotape discovery deposition of Lourdes deArmas, M.D., which failed to conform with the Maryland Rules of Procedure and Evidence?

III. Was it reversible error to submit the estate's claim for conscious pain and suffering to the jury when appellees failed to produce evidence that the decedent consciously suffered pain before his death?

IV. Did the trial court commit reversible error in ruling that a paramedic's first-hand observations at the scene were hearsay?

In addition, appellees raise the following issue, also restated for clarity, on cross-appeal:

V. Is Maryland's cap on non-economic damages, as stated in C.J. § 11-108, unconstitutional?

We answer questions I, II, and III in the affirmative and questions IV and V in the negative. In light of our holding, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

STATEMENT OF FACTS

Jamal was two years old in March 1996 when the events leading up to this case occurred. He lived with both appellees his mother, Markieta, and his grandmother, Janet. Throughout his brief lifetime, Jamal had a history of respiratory illness, having been treated twice for pneumonia.

On March 14, 1996, Jamal developed a cold, with congestion, wheezing, and a cough. Because he was crying and fussing all night, Janet slept with him on the couch. He woke up repeatedly during the night, coughing and wheezing.

The next morning, noticing that her son had not improved, Markieta took Jamal to the office of Lourdes deArmas, M.D. at Total Health Care (THC) in Baltimore, complaining that her son was suffering from a runny nose and congestion. Dr. deArmas treated him for bronchial constriction, based on his congestion and chest retractions. Unfortunately, Jamal did not respond to the treatment and, by 11:30 a.m., concerned by his desaturated blood oxygen level and dusky skin color (consistent with an episode of hypoxia), gave Jamal a nebulizer/oxygen treatment and instructed someone to call "911" in order to take him to appellant's Emergency Room (ER).

Arriving at the ER at approximately 12:00 noon on March 15, 1996, Jamal's color was good; his skin temperature was normal; he appeared to be alert; however, he continued to have loose, rattly sounds when he breathed. For this condition, he was given another nebulizer treatment, which made him lethargic, but brought his pulse oximetry reading up to 98%, which was normal. The nurses continued to keep him on a 50% level of supplemental oxygen to aid him in his breathing.

At approximately 1:35 p.m., Jamal experienced a second down- turn in his oxygen levels, dropping to below-normal saturation levels. Upon the nurses' suggestions, Markieta carried Jamal, anxious and crying, to an examination room where he was given another oxygen treatment to alleviate his hypoxia. At that point, Dr. Young, appellant's pediatric attending physician, was called to evaluate Jamal. Although Young noted that Jamal was awake, alert, and had no wheezes or obstruction of air flow into and out of the upper airway, she ordered an x-ray of Jamal's chest in order to exclude the possibility of an obstructing lesion in the upper airway. The x-ray confirmed that there was not an obstruction, but that Jamal was merely suffering from a respiratory infection.

Jamal was then monitored in the ER for four more hours and was discharged at 4:05 p.m. At that time, his pulse oximetry remained above 96% (above normal), and he had good air movement and was stable and alert. Markieta was instructed to bring Jamal in for a follow-up visit the next day.

At home on the evening of March 15, 1996, Jamal's health improved and he went about his usual activities eating a dinner of sardines, crackers, and noodle soup. Jamal fell asleep in Markieta's bed after his bath. Although Markieta applied Vapo-Rub to his chest and nose, Jamal woke frequently during the night, coughing and crying.

At approximately 10:30 a.m. on March 16, 1996, Markieta awoke to find Jamal lying in bed unresponsive. While Janet performed cardiopulmonary resuscitation (CPR), Markieta called "911." Jamal never regained consciousness, never moved, never opened his eyes, and never became responsive.

During their efforts to resuscitate Jamal, the paramedics and the firefighter who responded to the call noticed a strong chemical, solvent-like, toxic odor coming from his mouth and nose. They suspected Jamal had ingested a toxic substance, based on a bottle found in the home; however, a subsequent police investigation at the house found no evidence of a bottle. Upon arrival at the ER, Jamal was in full cardiopulmonary arrest and, at 11:25 a.m., less than one hour after Markieta called "911," Jamal was pronounced dead. Although the paramedics suspected he had ingested a toxic substance, the Chief Medical Examiner's Office found the cause of Jamal's death to be cardiac arrhythmia.¹

DISCUSSION

Our only role as an appellate court in reviewing a jury's decision is to determine whether the evidence was legally sufficient to permit the judge, as a matter of law, to submit the case to the jury. Starke v. Starke, 134 Md. App. 663, 679 (2000). When determining the sufficiency of that evidence, it is imperative that we view the evidence in the light most favorable to the prevailing party below, in order to determine whether "there [was] some evidence in the case, including all inferences that may permissibly be drawn therefrom, that, if believed and if given maximum weight, could logically establish all of the elements necessary to prove that the... tort[-]feasor committed the tort...." Id.

I

Appellant contends that the trial court committed reversible error when it provided the incorrect instruction on the law pertaining to wrongful death actions and that, because of this error, the jury's verdict should be reversed as it is unclear. "Specifically," appellant argues, "the trial court's instructions failed to inform the jury that[,] in order to find [appellant] liable, [it] must find that [appellant's] negligence caused Jamal Malory's death. Rather, the trial court instructed the jury only that [appellant's] negligence must have caused 'any injury' to [appellees]."

The crux of appellant's argument centers around the instructions given to the jury on the verdict sheet. Those instructions, in relevant part, were as follows:

If you decide in answering the question that you have decided for [appellees] as to the first portion, if you will, of that of the verdict sheet, and that is that you found that [appellees] have proven by a preponderance of the evidence that [appellant] was in fact negligent in its actions as a breach of the standard of care and that you find that in fact that it has been proven by a preponderance of the evidence, and that [appellees] have proved by a preponderance of the evidence that the negligence of [appellant] did in fact cause damage to [appellees], then you must consider damages to which [appellees are] entitled, if any.

In addition to the instructions, appellant takes issue with Question 2 of the verdict sheet, which states, in relevant part: "Do you find that the negligence of [appellant] was the proximate cause of any injury to the said [appellees]?" Appellant contends that the trial judge's instructions were incorrect because they included the phrase "any injury," as opposed to "death." As a result, appellant continues, the jury was left "believing that all it had to do was find: (1) whether [appellant] breached the standard of care; and (2) whether that breach caused 'any injury' to appellees, in order to find [appellant] liable for [a]ppellees' wrongful death action." This exception to the trial court's jury instructions was properly noted on the record and was, therefore, preserved for appeal. Rules 2-520(e) and 4-235(e).

Appellees counter that appellant is complaining "that a single sentence, lifted from the trial court's lengthy jury instructions, confused and misled the jury. When read as a whole, however, the jury instructions set forth the applicable law on the...