Yonce v. SmithKline Beecham Clinical Laboratories, Inc.

• Decision Date: 01 September 1995
• Docket Number: No. 1560,1560
• Citation: 111 Md.App. 124,680 A.2d 569
• Parties: Deborah YONCE, Individually, etc., et al. v. SMITHKLINE BEECHAM CLINICAL LABORATORIES, INC., et al. ,
• Court: Court of Special Appeals of Maryland

Page 124

111 Md.App. 124

680 A.2d 569

Deborah YONCE, Individually, etc., et al. v. SMITHKLINE BEECHAM CLINICAL LABORATORIES, INC., et al.

No. 1560, Sept. Term, 1995.

Court of Special Appeals of Maryland.

June 28, 1996.

Reconsideration Denied Aug. 29, 1996.

Gilbert H. Robinette, Baltimore (Bruce J. Babij, George S. Tolley, III, and Robinette, Dugan & Jakubowski, P.A., on the brief), for appellants.

Daniel W. Whitney, Towson (Kathleen D. Leslie and Howell, Gately, Whitney & Carter, on the brief), for appellee SmithKline.

Robert J. Farley, Columbia (Jacobson, Maynard, Tuschman & Kalur, on the brief), for appellees Sanders and Ultrasound.

Before WILNER, C.J., and EYLER, J., and JAMES S. GETTY, Judge (Retired), Specially Assigned.

EYLER, Judge.

The premature births, and untimely deaths, of monozygotic (identical) twins born to appellants Deborah and Dennis Yonce gave rise to the litigation presently before us. Suit was brought by appellants as personal representatives of the deceased infants' estates, as parents for the wrongful deaths of their two minor children, by Deborah Yonce individually, and by appellants jointly for loss of consortium. They filed suit on September 22, 1993 in the Circuit Court for Baltimore City against SmithKline Beecham Corporation and two of its subsidiaries, appellees ("SmithKline"), ¹ and, on or about the same date, filed an action in the Health Claims Arbitration Office against Roger C. Sanders, M.D., et al., appellee ("Sanders"). ² On November 2, 1993, SmithKline removed the case to the United States District Court for the District of Maryland. Thereafter, following a waiver of arbitration, appellants petitioned the United States District Court for leave to amend their complaint to add Sanders as a defendant. The claims against Sanders were based on negligence, and the claims against SmithKline were based on negligence and breach of contract. In an order dated August 9, 1994, the United States District Court granted the petition, thereby destroying diversity of citizenship and, accordingly, remanded the matter to the circuit court.

SmithKline filed a motion for summary judgment with respect to all counts pertaining to it. The motion and memorandum in support thereof asserted lack of proximate cause and assumption of the risk as defenses to the tort counts; with respect to the contract counts, it asserted that Deborah Yonce was not a third-party beneficiary of a contract between Sanders and SmithKline and the alleged damages were not legally recoverable in a contract action. The circuit court heard argument on all of these issues in December of 1994. On January 24, 1995, the circuit court issued a memorandum opinion in which it concluded that SmithKline was entitled to summary judgment. Although the circuit court granted summary judgment in favor of SmithKline with respect to all counts (negligence and contract), in its opinion the circuit court referred only to the negligence claims and to the defense of proximate cause. ³ On February 13, 1995, appellants filed a motion requesting the circuit court to enter a final judgment pursuant to Maryland Rule 2-602. ⁴ The circuit court denied the motion on March 17, 1995. Appellants then filed a motion for reconsideration, in which they reiterated, among other things, that none of the defendants opposed appellants' motion for entry of a final judgment. The circuit court, nevertheless, denied that motion on April 24, 1995. Subsequently, Sanders moved for summary judgment on the ground of lack of proximate cause, based on the circuit court's judgment entered on behalf of SmithKline. In August of that year, the circuit court granted Sanders' motion for summary judgment.

Unsatisfied with the events that transpired below, appellants noted an appeal from the entry of summary judgment in favor of SmithKline and Sanders, and pose three question to us: ⁵

I. Can the admittedly negligent destruction of a medical sample be a proximate cause of damages sustained as a result of a subsequent medical procedure required to obtain a replacement sample?

II. Where a defendant negligently destroys a medical sample, does the patient 'voluntarily' encounter the risks associated with a subsequent medical procedure required to obtain a replacement sample, for purposes of the doctrine of assumption of the risk?

III. Where a defendant negligently destroys a medical sample, is the patient's 'understanding and appreciation' of the risks associated with the second procedure properly a genuine issue of material fact to be resolved by a jury?

Sometime in May of 1990, appellant Deborah Yonce learned that she was pregnant. ⁶ On June 29, 1990, Ms. Yonce went to the offices of Doctors Glowacki, Elberfeld & Spangler, P.A., Inc. ("Clinic"), for prenatal care and met with Shirley Secrest, a certified nurse midwife. In her deposition, Ms. Yonce testified that she could not recall the content of her conversation with Secrest. Secrest stated, in an affidavit, that she counseled Ms. Yonce regarding amniocentesis ⁷ and chorionic villus sampling ("CVS") ⁸ and, although she could not recall the actual conversation, she followed her normal routine and detailed the risks attendant to an advanced maternal age delivery (thirty-five years or over). ⁹ On July 9, 1990, Ms Yonce returned to the Clinic and met with Dr. Spangler. According to Ms. Yonce, Dr. Spangler discussed with her the potential hazards associated with her pregnancy (e.g., chromosomal abnormalities), explained to her the various testing options and attendant risks, including amniocentesis and CVS, and gave her assorted medical literature pertaining to the subjects under discussion. ¹⁰

Approximately one month later, Ms. Yonce telephoned the Clinic and informed the office staff that she wished to have an amniocentesis performed. Ms. Yonce, who understood that the procedure was indicated, but elective, had discussed the matter with her husband and weighed the risks involved. She testified in her deposition as follows:

Q What was the nature of discussion that you had with your husband concerning amniocentesis?

A Which test to have, the amniocentesis or the CVS? The CVS didn't seem to be as safe. The percentages and the possible outcome seemed not as, it didn't seem as safe to have the CVS as what it did the amniocentesis, so we decided on the amniocentesis.

Ms. Yonce's amniocentesis was delayed from the scheduled date of September 5 because a sonogram conducted on that day revealed that she was carrying twins and the sonographers could not determine whether the twins were enveloped within one amniotic sac or separate sacs. Three more failed attempts at visualizing sac separation led Dr. Elberfeld, of the Clinic, to refer Ms. Yonce to Dr. Sanders and his Institute.

Ms. Yonce met with Dr. Sanders at the Institute on September 26, 1990, where they discussed, as he noted in his deposition, the reasons for conducting an amniocentesis and the risks associated with the procedure.

Q What did you tell her about the benefits and the risks?

A I told her this was a procedure that carried with it a risk of ending the pregnancy somewhere between one and two hundred or one in three hundred.

I told her there were several complications associated with the performance of an amniocentesis, which in total added up to that risk.

Complications that I mentioned were induction of premature labor and hemorrhage, loss of fluid and infection.

In her deposition, Ms. Yonce declared that Dr. Sanders did not discuss with her the risks and benefits of the amniocentesis. Instead, she was told to sign a consent form "where it sa[id] patient," and she did so. Knowing that she carried twins, Ms. Yonce explained why she decided to undergo the first amniocentesis.

Q What made you decide to go ahead with the amniocentesis?

A I thought that it was the best thing. I thought that it would help to know about my babies, which I knew there was two at the time, and because of my age, if there were problems, the results that would come out of the tests might, you know, help my doctors and us.

They told us that they could let us know the sex. They pretty much knew the sex of the babies from the sonogram, but they would not guarantee it. I was apparently too early. I just thought that it was something that I should do.

Q But you realized that you had the option not to have it done?

A Yes.

Q Did you decide with your husband what you would have done had you found out that there was a chromosomal abnormality?

A We never discussed that. We never discussed what, you know, what the tests would have shown and what we would have done.

Q You were just going to cross that bridge when you came to it, if you came to it?

A Yes.

Q Was finding out the sex one of the important factors in making this decision?

A It was one of them.

The amniocentesis procedure was uneventful and produced a specimen from each sac. An Institute employee packaged the specimen and contacted SmithKline's laboratory for pick-up. Unfortunately, the specimens were rendered useless when the transporter placed them on dry ice and froze them. ¹¹

Dr. Sanders telephoned Ms. Yonce, informed her that the specimens were useless and scheduled another amniocentesis. According to Dr. Sanders, prior to the second amniocentesis, he informed Ms. Yonce "that the risks and benefits [of the second amniocentesis] were essentially the same as they had been on the previous occasion." Ms. Yonce contacted Dr. Elberfeld, who told her that "the risk of having it [an amniocentesis] the second time would be approximately the same as having it the first time.... [S]o she would be taking the risk twice." On October 2, 1990, Ms. Yonce submitted to a second amniocentesis performed by Dr. Sanders. ¹² After the second amniocentesis, Ms. Yonce felt "fine, relieved." The next day, however, she became ill and, pursuant to Dr. Elberfeld's instructions, reported to the hospital. At the hospital, Dr. Elberfeld examined Ms....