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;
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,
The conclusion expressed after autopsy was as follows:
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
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.
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:
67 Md. App. at 541, 508 A.2d at 531.
The trial court's charge on negligence and causation was as follows:
The exception to that part of the court's charge was as follows:
The intermediate court had grounded its holding upon language used by the late Judge Sobeloff in Hicks v. United States, 368 F.2d 626, 632 (4th Cir.1966) that had been quoted by Judge Barnes in our decision in Thomas v. Corso, 265 Md. 84, 102, 288 A.2d 379, 389-90 (1972).
We granted certiorari to consider the question of public importance.
The Appeal as it Relates to Count I
(Survivorship action by the personal representative under Cts. & Jud.Proc.Art. § 6-401 and Est. & Trusts Art. § 7-401(x))
No contention was made in the circuit court that recovery of damages for the loss of a substantial chance of survival was permissible under that count of the declaration. The record shows that while the taking of testimony in the circuit court was suspended awaiting arrival of a witness, the trial judge and plaintiffs' counsel discussed the court's instructions to be given in the survivorship action. The following colloquy appears in the record:
Pursuant to that discussion, the court in its charge to the jury, said:
No exception was taken to the charge as given by the court under Count I. Accordingly, the question whether Maryland recognizes the loss of a substantial chance of survival as a measure of damages or as a separate tort was not raised or decided under this count of the declaration. We shall not consider the question under that Count.
The Appeal as it Relates to Count III
(Action for wrongful death under Cts. & Jud.Proc.Art. §§ 3-902(a) and 3-904(a))
Burden of proof under such actions
The general rule in negligence cases is thus stated in Prosser & Keeton on Torts, § 38, at 239 (5th ed. 1984):
In 2 S.M. Speiser, Recovery for Wrongful Death § 12.1, at 288 (2d ed. 1975), it is said:
In F.B. Tiffany, Death by Wrongful Act § 189, at 426 (2d ed. 1913), the author also makes clear that this rule of law has application to cases involving negligence causing death:
In 30 Am.Jur.2d Evidence § 1121, at 288-89, the rule is thus stated:
That Maryland courts long have recognized and applied this rule of law is beyond cavil. In Brady v. Consol Gas Co., 85 Md. 637, 641, 37 A. 263 (1897), it was said:
85 Md. at 641-42, 37 A. at 264.
The applicability of the above Maryland rule to cases of negligence causing death grounded upon medical malpractice is equally well settled. In State, Use of Janney v. Housekeeper, 70 Md. 162, 16 A. 382 (1889), we said:
70 Md. at 171, 16 A. at 384.
The continuing applicability of the rule imposing the burden of proof upon the plaintiff in medical malpractice cases, is shown by Johns Hopkins Hospital v. Genda, 255 Md. 616, 621-22, 258 A.2d 595, 598-99 (1969).
In Kalives, supra, this Court stated:
The rule of law governing the burden of proof in medical malpractice cases was reiterated in Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 464 A.2d 1020 (1983). In that case, involving survival and wrongful death actions, the late Judge Davidson, speaking for this Court, said:
296 Md. at 666, 464 A.2d at 1026.
We see no deviation from these rules of law in either the Hicks or the Thomas decisions. The basic issues for decision in both Hicks and Thomas, supra, were identical and were similarly stated by the distinguished judges who authored the opinions in the respective courts.
In Hicks, supra, Judge Sobeloff, after his review of the record below, upon the issue of the negligence of the defendant said:
368 F.2d at 631-32.
On the question whether the evidence at trial established that "[the doctor's] concededly erroneous diagnosis and treatment was the proximate cause of her death," Judge Sobeloff said:
368 F.2d at 632.
368 F.2d at 633.
Similarly, in Thomas, supra, Judge Barnes, after noting that "we must resolve all conflicts in the evidence in favor of the plaintiffs and give them the benefit of all reasonable inferences to be derived from the evidence favorable to them," 265 Md. at 100, 288 A.2d at 389, examined the evidence on the record then before this Court and said:
265 Md. at 103, 288 A.2d at 390.
In short, the Court in Hicks found that the record showed that negligence had been proven as a matter of law and that uncontradicted evidence showed that such negligence was the proximate cause of the death; this Court in Thomas found that the record showed evidence legally sufficient to establish negligence that was a proximate cause of the death.
The appellees take comfort in our decision in State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975) wherein Chief Judge Murphy spoke for this Court on the principles of multiple contributing causes in death cases. The reliance would be apt if the appellees had succeeded in obtaining a favorable jury verdict. Under the instructions given by the trial court, such a contention not only was permissible, the argument actually was made by plaintiffs' counsel but was rejected by the jury. Appellees manifestly have misread our decision in Thomas, supra. They state in their brief at page 27:
Such was not the status of Thomas v. Corso at the appeal to this Court. The trial judge in Thomas (with one exception not pertinent to that appeal) correctly, we held, denied the defendants' motion for a directed verdict. The jury rendered a verdict in favor of the plaintiffs. Our decision in Thomas v. Corso required us to determine "whether the trial court erred in declining to grant motions for directed verdicts and for judgments n.o.v. in favor of [the appealing defendants]." Id. [265 Md.] at 86, 288 A.2d at 382. We concluded that it did not err.
We decline to accept appellees' suggestion that such careful and analytical jurists as Judges Sobeloff and Barnes intended the quoted language in Hicks, supra, to alter, without discussion, the rule of law governing the burden of proof so anciently formed and so uniformly applied in wrongful death cases under the Maryland statute.
Indeed, the circuit court for the Fourth Circuit itself has rejected such interpretation of those words. In Clark v. United States, 402 F.2d 950 (4th Cir.1968) that court said: "Certainly Hicks laid down no new rule of law with respect to either negligence or proximate cause...." Id. at 953 n. 4. That same court in Waffen v. U.S. Dept. of Health & Human Services, 799 F.2d 911, 915 (4th Cir.1986) said:
The Court's Charge on Causation
We perceive no new ground having been plowed by Hicks or Thomas, both supra. Judge Sobeloff's philosophical paragraph in Hicks, quoted supra and cited in Thomas, created neither a new tort nor an additional basis for determination of damages in an existing tort. Whether it will prove to be an augury of a burgeoning new tort or introduce a new factor for consideration of damages in tort cases producing injury or death are issues for another day in another cause. We do not reach those issues. This is so because it is crystal clear that determination of such questions is impermissible in an action for wrongful death under the Maryland statute.
The Maryland statute is in derogation of the common law and as such, should be strictly construed. McKeon v. State, Use of Conrad, 211 Md. 437, 443, 127 A.2d 635, 638 (1956) and cases cited therein. In plain, unambiguous language, the statute provided a cause of action unknown to the common law for the benefit of described beneficiaries "against a person whose wrongful act caused the death of another" (emphasis added). In such circumstances, there is no room for judicial interpretation. Trimper v. Porter-Hayden, 305 Md. 31, 36, 501 A.2d 446, 449 (1985).
The commencement date for the determination of damages allowable to primary beneficiaries under the statute (both pecuniary and for solatium) is the date of the death of their decedent. No damages for injuries and losses sustained by their decedent prior to his death are provided for in the statute.
The enlargement of the statute requested by the appellees for recognition of a new tort or for consideration of a new measure of damages "cannot be accomplished in the guise of statutory construction." Trimper v. Porter-Hayden, supra, 305 Md. at 36, 501 A.2d at 449. The respective charge to the jury in Thomas, supra, and in the subject case, while couched in different words, both recognize the legal principle that a plaintiff beneficiary in an action under the wrongful death statute must show by a preponderance of the evidence that the conduct of a defendant was negligent and that such negligence was a proximate cause of the death of the decedent.
There was no error in the trial court's charge to the jury. The judgment of the Court of Special Appeals is reversed.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. APPELLEES TO PAY THE COSTS.
McAULIFFE, Judge, concurring.
I agree that under the particular circumstances of this case the trial judge did not err in refusing to instruct the jury on the theory of loss of a substantial chance of survival. A claim for damages for loss of a substantial possibility of survival is inherently inconsistent with the element of proof of causation of death that is required for the successful maintenance of a wrongful death action.
I write separately because I am concerned that the majority suggests that we have rejected the concept of a claim for loss of a substantial chance of survival when in fact we hold only that the issue is not presented by this case.
I can agree with much of the dictum in the majority opinion — that our earlier cases have not modified the ordinary requirements of burden of proof and causation to accommodate the theory of loss of a substantial chance of survival. As I view it, however, a claim under that theory does not involve the creation of a new tort, but rather involves a redefinition of damages involved in the claim. Traditional principles of law relating to duty, breach, causation, and burden of proof remain the same — what changes is the acceptance of the concept that damages may be recovered for the loss of a chance of survival where that chance is substantial and can be identified and quantified (and thus valued) without resort to conjecture or speculation. I am unwilling to say that neither Hicks v. United States, 368 F.2d 626 (4th Cir.1966), nor Thomas v. Corso, 265 Md. 84, 288 A.2d 379 (1972) suggests a favorable inclination toward a claim for damages resulting from the loss of a substantial chance of survival. Our holding today is simply that these interesting questions must await resolution on another day.
Eclampsia is a condition of uncertain etiology, occurring during some pregnancies, that compromises the placenta, through which the blood of the mother passes to and through the body of the fetus and returns through it to the blood stream of the mother for purification. The condition is life-threatening to mother and child.
Section 3-904(a) Action for wrongful death reads as follows: "(a) Primary Beneficiaries. — An action under this subtitle shall be for the benefit of the wife, husband, parent, and child of the deceased person."
"[I]f you find by a preponderance of the evidence that the doctor's conduct was a violation of the duty of care owed to the patient, you must determine, again by a preponderance of the evidence, whether this failure to attend personally to the patient has been shown to a reasonable medical probability or certainty to have caused Mr. Corso's death or to have been a substantial factor in bringing about death. In a word, you must decide whether it was more likely so than not so that the attendance of a physician would have led to disclosure of Mr. Corso's condition in a way different from that which appeared to the nurse at the time and would have led to remedial measures, with reasonable medical certainty, that would have prevented the patient from falling into the condition of shock which was the ultimate cause of death." (Records and Briefs to Thomas Corso, No. 201 Sept. Term, 1971, pp. 475-76 (emphasis added). As Judge Barnes pointed out in Thomas: "[T]his negligent conduct was one of the direct and proximate causes of Corso's death, concurrent with the negligence of the nurses." 265 Md. at 103, 288 A.2d at 390.