Weimer v. Hetrick

• Decision Date: 01 September 1986
• Docket Number: No. 99,99
• Citation: 525 A.2d 643,309 Md. 536
• Parties: Stanley R. WEIMER v. Jody Ann HETRICK et al. ,
• Court: Maryland Court of Appeals

Page 536

309 Md. 536

525 A.2d 643

Stanley R. WEIMER v. Jody Ann HETRICK et al.

No. 99, Sept. Term, 1986.

Court of Appeals of Maryland.

May 28, 1987.

David R. Thompson (Roy B. Cowdrey, Jr. and Franch, Earnest & Cowdrey, P.A., on the brief), Easton, for appellant.

John F. King, Jeanette A. Plante, and Anderson, Coe & King, Baltimore, on brief, for amicus curiae the Medical and Chirurgical Faculty of State of Maryland.

E. Fremont Magee, H. Mark Stichel and Piper & Marbury, Baltimore, on brief, for amicus curiae Chesapeake Physicians, P.A.

Donald L. DeVries, Jr., J. Mitchell Lambros and Semmes, Bowen & Semmes, Baltimore, on brief for amicus curiae Franklin Square Hospital, Greater Baltimore Medical Center, Inc., South Baltimore General Hospital, Dorchester General Hospital, University of Maryland Medical Systems Corp., Maryland Society for Healthcare Risk Management and R.I.S.C., Inc.

Henry E. Dugan, Jr. (Gilbert H. Robinette and Robinette, Dugan, Seiden & Jakubowski, P.A., on brief), Baltimore, for appellees.

Argued before COLE, RODOWSKY, COUCH and McAULIFFE, JJ., MARVIN H. SMITH and CHARLES E. ORTH, Jr., Associate Judges of the Court of Appeals of Maryland (retired), Specially Assigned and W. ALBERT MENCHINE, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

W. ALBERT MENCHINE, Judge, Specially Assigned.

Appellees, Jody Ann Hetrick and Michael Cary Hetrick, filed a malpractice claim, pursuant to the Health Care Malpractice Claims Act (Courts and Judicial Proceedings Article, Subtitle 2A, 1984 Repl.Vol.) with the Health Claims Arbitration Office, in August 1982, alleging that Appellant, Dr. Stanley R. Weimer; Dr. Thomas R. Moeser; Dr. John S. Harris; ¹ St. Agnes Hospital; ² and the Anne Arundel Hospital were negligent in the care and treatment of Jason Michael Hetrick, their son, who was delivered by caesarean section but who died hours after birth.

The Health Claims Arbitration panel found no liability on the part of the Health Care Providers against whom the claim was litigated, but found liability on the part of Dr. Moeser, although he had settled the claim against him prior to hearing. Appellees rejected the panel decision pursuant to the judicial review provisions of the Act (Cts. & Jud.Proc.Art. § 3-2A-06) and filed suit in the Circuit Court for Anne Arundel County against Dr. Weimer, Dr. Harris and Anne Arundel General Hospital. Dr. Harris settled with Appellees prior to trial in the Circuit Court for Anne Arundel County. Motion for directed verdict as to Anne Arundel General Hospital was granted at the end of evidence offered by the plaintiffs. The case then proceeded against Dr. Weimer alone, going to the jury under Counts I and III.

The mother had been admitted to Anne Arundel County Hospital on the service of Dr. Thomas Moeser on September 2, 1978 with a diagnosis of "severe gastroenteritis versus cholecystitus." Her condition worsened and on September 9, 1978 she underwent exploratory laparotomy. It was noted that the gall bladder was completely normal but she had a great deal of edema of the liver and it was felt that she was a very early severe pre-eclamptic. The incision was closed without cholecystectomy being done. A very stormy course followed the exploratory operation. Within twelve hours, it was felt that the severe pre-eclampsia could not be controlled and that termination of the pregnancy was necessary. The mother agreed to delivery by caesarian section, knowing that the 32-week gestation infant might have only a poor chance of survival. A 3 lb., 6 oz. boy was delivered by the operative procedure performed by Drs. Moeser and Harris. Dr. Weimer occupied no role in either operative procedure but received the infant in the operating room after the delivery at 6:43 p.m.

Dr. Kenneth L. Harkavy, a physician and neonatologist, testified that Dr. Weimer's medical services for the infant were not in keeping with the required standard of care: (1) inadequate resuscitative efforts; (2) improper use and dosage of bicarbonate; (3) premature removal of the umbilical venous line that was the only route for administration of medicines and nourishment--removal should not have occurred prior to starting an I.V.; (4) flushing the umbilical venous line with an excessive concentration of Heparen; (5) failure to observe the baby's progressive fatigue from his trying to keep his lungs expanded; (6) failure to monitor blood sugar of the infant. Dr. Harkavy conceded that many of the symptoms shown by history in the hospital record on original admission were classic findings for eclampsia. He concluded, however,

"Given the condition of the baby at birth, are you able to say with reasonable medical probability whether this baby would have survived if the resuscitation had not been inadequate?"

Answer: "I can tell you that at the birth weight and with an Apgar of two that that baby's survival chances would still be considered good. In fact, the likelihood of survival still that we're talking about is 80 to 90%. Perhaps somewhat pre--slightly prejudiced from the average survival rate but not significant."

The conclusion expressed after autopsy was as follows:

"The cause of intrauterine anoxia in this case is uncertain when the clinical events are examined. Some authors have indicated that during eclampsia, blood flow to the placenta is decreased which would, of course, lead to a decreased oxygen supply to the fetus. Over a long period of time, toxemia may lead to growth retardation and decreased fetal size. Another possibility in this case is that anoxia to the fetus occurred at the time of surgery from anesthesia administration. Of course, the mother underwent both cholecystectomy and caesarean section presenting two periods during which intrauterine anoxia might have occurred. There is no history supportive for the other main causes of fetal anoxia as abruptio placenta, placenta previa, maternal shock, placental infarct, or cord interruption. Thus, it would seem most probable that a combination of eclampsia plus general anesthesia led to fetal anoxia and the pathologic changes observed. Although fetal mortality in the presence of eclampsia has greatly improved, it still remains a substantial cause of fetal death. This is frequently secondary to the necessity of premature delivery in these mothers."

Dr. Judith Gieske, a pediatrician, after tracing the course of the baby's life from delivery to death, concluded that Dr. Weimer met the standard expected of him and did nothing that caused or contributed to the baby's death.

In Count I, Jody Ann Hetrick had sued as personal representative of the estate of Jason Michael Hetrick, deceased, pursuant to the provisions of Annotated Code of Maryland, Courts and Judicial Proceedings Article, Subtitle 4 Practice, in General, § 6-401(a) Survival of Actions ³ (1984 Repl.Vol.) and Estates and Trusts Article, Subtitle 4 Powers of Personal Representative § 7-401(x) General Powers (1974). ⁴

In Count III, Jody Ann Hetrick and Michael Cary Hetrick, mother and father, respectively, of Jason Michael Hetrick, deceased, had sued pursuant to the provisions of Courts and Judicial Proceedings Article, Subtitle 9 Wrongful death § 3-902(a) and § 3-904. ⁵ The jury returned verdicts in favor of the defendant, Dr. Weimer, under both counts.

The Appellees appealed to the Court of Special Appeals. That court, not distinguishing between the respective rights of the litigants under Count I and under Count III, affirmed in part and reversed in part. ( Hetrick v. Weimer, 67 Md.App. 522, 508 A.2d 522 (1986)), holding that the trial court erred in instructing the jury that the plaintiff was required to prove by a preponderance of the evidence that death of the decedent was caused by the negligence of the defendant. The court remanded the case for a new trial. In the decision below, the court said:

"Thus, the instruction that the plaintiffs had to prove, by a preponderance of the evidence, that the physician's negligence was the primary or most probable cause of the patient's death imposed an improper burden upon them. The theory of appellants' case was not that Dr. Weimer caused their son's death; it was that Dr. Weimer's failure to do what was reasonable, proper, necessary and appropriate to resuscitate Jason deprived the child of a substantial possibility of survival" (footnote omitted).

67 Md.App. at 541, 508 A.2d at 531.

The trial court's charge on negligence and causation was as follows:

"To hold Dr. Weimer liable, the plaintiffs have to show that his conduct was clearly not recognizable as medically acceptable. And no pediatrician is chargeable with the results of his efforts if he has applied the degree of skill ordinarily required to be expected of a pediatrician in the performance of the services required. And you have to keep in mind the circumstances as they existed at the time of the treatment and the nature and complexity of the medical problems facing the pediatrician at that time. If you find that Dr. Weimer, under those circumstances as they then existed rather than by hindsight, exercised that reasonable degree of care and skill, then you must find in favor of the doctor.

Now plaintiffs need only prove the most likely cause of the baby's death in addition to everything else that I've said. The plaintiffs are not required to negate or exclude every other possible cause. However, if there are two or more causes, either of which could have resulted in the baby's death, one of which for which the pediatrician is responsible, and the others for which he is not, then the plaintiffs have to prove by evidence more likely so than not that the acts for which the pediatrician is responsible in fact caused the baby's death. Now there I've used that phrase by evidence more likely so than not.

Take the example in this case, and it is strictly an example, and I don't mean to infer that these are the facts. Again, I'm only doing this to...