Zeller v. Greater Baltimore Medical Center

• Decision Date: 01 September 1985
• Docket Number: No. 797,797
• Citation: 506 A.2d 646,67 Md.App. 75
• Parties: Diane H. ZELLER v. GREATER BALTIMORE MEDICAL CENTER, et al. ,
• Court: Court of Special Appeals of Maryland

Page 75

67 Md.App. 75

506 A.2d 646

Diane H. ZELLER v. GREATER BALTIMORE MEDICAL CENTER, et al.

No. 797, Sept. Term, 1985.

Court of Special Appeals of Maryland.

April 3, 1986.

Marvin Ellin (Thomas J. Kwiatkowski, Jr., LaVonna L. Vice and Ellin & Baker, on brief), Baltimore, for appellant

Jeffrey B. Smith (Maureen J. Carr and Smith, Somerville and Case, on brief), Baltimore, for appellee Novoa.

Susan T. Preston (Donald L. DeVries, Jr., Laura C. McWeeney and Semmes, Bowen & Semmes, on brief), Baltimore, for appellee, Greater Baltimore Medical Center.

Argued before BLOOM, ROSALYN B. BELL and WENNER, JJ.

ROSALYN B. BELL, Judge.

Diane Zeller was kidnapped at gunpoint and raped. The assailant was later arrested, brought to trial and convicted.

Immediately after the incident, she was taken by the police to the Rape Crisis Center located at the Greater Sometime thereafter she discovered she was pregnant. Zeller later testified that her strong religious beliefs precluded her from having an abortion, and moreover she saw no reason why her child should pay for its criminal inception. She would not "feel right about killing the child." She further asserted she could not give up the biracial child for adoption because she feared that the child would be adversely affected knowing her mother had rejected her and her father was a criminal.

                Baltimore Medical Center (GBMC).   Zeller was examined by Julio C. Novoa, M.D., who administered medication for the prevention of venereal disease.   He also gave her a prescription for Estrace, a drug used to "prevent" pregnancy.   Zeller had the prescription filled and stated that she took the Estrace as directed
                

After the child was born, Zeller left her job to care for the child. She incurred and will continue to incur expenses in raising her daughter.

A complaint was filed by Zeller and her daughter under the Maryland Health Claims Arbitration Act, codified at Md.Cts. & Jud.Proc.Code Ann., §§ 3-2A-01 et seq. (1984 Repl.Vol., 1985 Cum.Supp.). The suit filed against Novoa and GBMC alleged both wrongful birth and wrongful life causes of action arising from violations of accepted and prevailing standards of gynecological care. Novoa was alleged to be practicing medicine at the time on behalf of GBMC, and GBMC was charged with vicarious liability for his negligence.

A three member Arbitration Panel found liability as to Novoa only and awarded damages in the amount of $250,000 in favor of Zeller individually. The panel chairman sustained a demurrer without leave to amend the individual claim of wrongful life brought in the child's name. No finding was made as to GBMC's vicarious liability.

Both Novoa and Zeller filed Notices of Rejection of the panel's decision. Md.Cts. & Jud.Proc.Code Ann., § 3-2A-06(a), supra. Zeller rejected the award and appealed to the The trial judge granted demurrers barring the child's claim for wrongful life. ¹ GBMC filed a Motion Raising Preliminary Objection challenging the court's jurisdiction on the ground that Zeller's Notice of Rejection did not address the absence of a finding with respect to GBMC's liability. The judge denied that motion.

                Circuit Court for Baltimore County contesting the amount.   An appeal was also brought on behalf of her daughter challenging the chairman's decision regarding her wrongful life cause of action.   Novoa also appealed from the adverse finding of the Arbitration Panel
                

At the conclusion of the trial on the merits, GBMC moved for a directed verdict, premised on an insufficiency of evidence demonstrating an agency relationship between itself and Novoa. The court granted that motion. The jury returned a unanimous verdict in favor of Novoa.

Zeller has appealed raising the following issues for our consideration:

I. "Whether the lower court erred in failing to instruct the jury on a cause of action under the doctrine of informed consent."

II. "Whether the lower court erred in failing to grant Plaintiff's requested instruction No. 2A, that comparable treatment by several local hospitals did not create the appropriate standard of care by which to judge the Defendant's conduct."

III. "Whether the lower court erred in failing to grant Plaintiff's requested instruction No. 5, that the Defendant could be subject to liability if he was found to have prescribed Estrace as part of a personal experimental or testing program which was not conducted in accordance with prevailing standards of care regarding such protocols."

IV. "Whether the lower court erred in failing to grant Plaintiff's requested instruction No. 7A, that the Defendant's contention, that no prevailing standards of care existed in 1981 regarding the prescription of postcoital drugs for rape victims, was an affirmative defense, which required the Defendant to meet the burden of proof thereon by the preponderance of the evidence."

V. "Whether the lower court erred in instructing the jury that, in mitigation of the Plaintiff's damages, it could consider the emotional and societal benefits conferred upon her by the birth of her child."

VI. "Whether the trial court erred in failing to sequester the jury during the pendency of its deliberation."

Zeller also contends that the court erred in directing a verdict in favor of GBMC. GBMC has cross-appealed contending that

"[t]he trial court erred in finding jurisdiction over Greater Baltimore Medical Center as to Count I of the Declaration because cross-appellees failed to reject or to seek to nullify the award in favor of G.B.M.C."

In light of our holding affirming the judgment entered in favor of Novoa, it is unnecessary for us to address either of the issues regarding GBMC's alleged vicarious liability.

JURY INSTRUCTIONS

A litigant is entitled to have his or her theory of the case presented to the jury if that theory is a correct exposition of the law and if there is evidence in the case which supports that theory. The Sergeant Co. v. Pickett, 285 Md. 186, 401 A.2d 651 (1979), quoting Levine v. Rendler, 272 Md. 1, 13, 320 A.2d 258 (1974). In advancement of that proposition, Rule 2-520(c) provides:

"How Given.--The court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instruction of its own, or by combining any of these methods. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given."

Against this background, we will discuss each of appellant's requested instructions, and the propriety of the court's denial of those requests.

Informed Consent

Appellant requested an instruction on the law of informed consent which the court declined. We hold the court did not err in refusing that request for two reasons.

-- Failure to Plead Issue--

Appellant asserts that since the issue of informed consent was raised by the evidence, the failure to submit the question for jury deliberation was error.

Appellee Novoa retorts that not only was the evidence adduced insufficient to sustain the instruction, but that "[i]t is axiomatic that before a plaintiff may receive an instruction to the jury based upon the doctrine of informed consent, she must first properly plead ... such a case." Reviewing appellant's Declaration and Answers to Interrogatories, appellee Novoa avers these documents demonstrate appellant's failure to plead the issue.

Appellant responds to this charge by claiming that appellee Novoa has waived any right to contend that the issue of informed consent was not raised "by virtue of his proceeding to trial on the merits of that issue and failing to object to any of the evidence offered to prove it." In support of her argument, she refers us to M.L.E. "Pleading," § 145; Wathen v. Pearce, 175 Md. 651, 3 A.2d 486 (1939); Richardson v. Anderson, 109 Md. 641 (1909); and Straus v. Young, 36 Md. 246 (1872). These authorities are of no assistance to appellant.

Through her references, appellant seeks to invoke the procedural device of a "variance." A variance is a discrepancy between the allegations of the pleadings and the proof adduced. Black's Law Dictionary 1392 (5th ed. 1979). This case does not present a variance. What is presented instead is appellant's complete failure to plead a specific cause of action. The rendering of medical services The doctrine of variance has been subsumed by the adoption of liberal amendment rules which permit a party to amend his or her declaration to conform to the evidence. In Staub v. Staub, 31 Md.App. 478, 356 A.2d 609, cert. denied, 278 Md. 735 (1976), now Chief Judge Gilbert writing for this Court reaffirmed that Maryland has adopted a liberal view toward amendments. Quoting 3 Poe's Pleading and Practice § 184 (6th ed. H.M. Sachs, Jr. 1975), Staub, supra noted:

                absent informed consent, if pled properly, constitutes a separate and new count of negligence.   See Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977).   The law is settled that "[a] party cannot allege one cause of action and introduce evidence to prove another and different one."   McTavish v. Carroll, 17 Md. 1 (1861).   The purpose behind this principle is clear.   A defendant must have notice of the allegations lodged so he or she can use his or her best efforts to disprove the charges
                

" 'Amendments now liberally allowed. -- These provisions [the Maryland Rules] are so clear as to call for but little comment. They indicate great liberality in the allowance of amendments, in order to prevent the substantial justice of a cause from being defeated by formal slips or slight variances, and under their operation the practical injustice which formerly disfigured the administration of the law, in consequence of the enforcement of strict technical rules of pleading, is greatly diminished.' " (Brackets in original.)

Id. at 482, 356 A.2d 609. Further, "cases may, by amendment, be changed from one form of action to another...." 3 Poe's Pleading and Practice § 185, supra.

Appellant did not attempt to amend her pleadings...