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Headnotes: Pedro P. Arrabal, et al. v. Tracy Crew-Taylor, et al., No. 27, September Term, 2003. PARENT AND CHILD: In a medical malpractice action, the estate of an infant attempted to claim entitlement to over $600,000 in past medical expenses incurred prior to the infant's death. The estate, while recognizing that ordinarily the child's parents, not the child (or his estate), has a right to recoup past medical expenses, attempted to utilize one of the exceptions to the usual rule, i.e., the child may recover past medical expenses if the child (or his estate) "can show that he or his estate either has paid or will be individually responsible to pay for medical expenses." The exception relied upon was inapplicable, however, because the parents' insurer paid all the medical bills at issue.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 27 September Term, 2003 _______________________________

PEDRO P. ARRABAL, ET AL. V. TRACY CREW-TAYLOR, ET AL.

_______________________________ Davis, Salmon, *Sonner, JJ. _______________________________ Opinion by Salmon, J. Filed: December 3, 2004 *Sonner, J., participated in the hearing and conference of this case while an active member of this Court; he participated in the adoption of this opinion as a retired, specially assigned member of this Court.

On October 17, 1998, Tracy Crew-Taylor entered Harbor Hospital Center in Baltimore. She was expecting triplets, who were at Her treating physician, Dr.

thirty weeks, two days gestation.1

Pedro P. Arrabal, diagnosed Mrs. Crew-Taylor as suffering from gestational diabetes. Mrs. Crew-Taylor delivered two daughters

(Cache and Sashe) and a son (Che) on the afternoon of October 19. The two girls were in good physical shape. Che had no pulse when

delivered and did not breathe for the first fifteen to twenty minutes afterward. He was revived but thereafter was in a

"vegetative state" and suffered from numerous physical problems, including profound hearing loss and blindness. He spent most of

his life (fourteen months) in various hospitals and died from his pre-birth injuries on December 6, 1999. A three-count complaint against Dr. Arrabal and Harbor

Hospital Center, Inc., was filed in the Circuit Court for Baltimore City on April 4, 2001. All counts of the complaint alleged that

Harbor Hospital Center's agent, Dr. Arrabal, deviated from the applicable standard of care by failing to deliver the triplets immediately upon receipt (on October 18) of test results showing that the fetuses were experiencing distress. Count I, a

survivorship action, was filed by Mrs. Crew-Taylor as personal representative of Che's estate. Count II was a wrongful death action filed by Che's father, Charles Taylor, and his mother, Mrs.

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Gestation of less than 37 weeks is pre-term.

Crew-Taylor. Count III, captioned "Lack of Informed Consent," also was filed by Che's parents. That count read, in part, as follows:

39. Although the [d]efendants knew and/or in the exercise of reasonable obstetrical and/or perinatology care should have known that Mrs. Taylor and/or Che Taylor's condition was indicative of fetal distress and the need for timely delivery of Mrs. Taylor's triplets, they failed to inform Mr. and Mrs. Taylor of this important fact. 40. Contrary to acceptable standards of obstetrical and/or perinatology care, the [d]efendants failed to timely deliver Mr. and Mrs. Taylor's triplets. 41. By failing to inform Mr. and Mrs. Taylor of Mrs. Taylor and Che Taylor's condition and that diagnostic, EFM and other testing clearly indicated that delivery of her triplets was indicated, the [d]efendants breached their duty to obtain the informed consent of Mr. and Mrs. Taylor prior to commencing their decision to prolong the pregnancy in light of clear signs of fetal distress. 42. The [d]efendants negligently failed to disclose to Mr. and Mrs. Taylor all material information regarding the course of treatment they proposed (prolonging the pregnancy), the risks to Mrs. Taylor and the fetuses of prolonging the pregnancy, the probability of having healthy fetuses if delivery was/is to be performed sooner as opposed to later, and the risks and consequences associated with hypoxia and acidosis should a trial of labor, vaginal delivery and/or prolonging the pregnancy were attempted. 43. Mr. and Mrs. Taylor were not provided with any alternatives to the [d]efendants' proposed treatment of prolonging the pregnancy, in particular earlier delivery of the triplets. 44. If Mr. and Mrs. Taylor, and any reasonable person in their situation, would 2

have been advised of the risks, complications and consequences associated with allowing the labor and/or pregnancy to progress/continue, they would have withheld their consent to prolonging the pregnancy and would have requested the timely delivery of their triplets. 45. The [d]efendants further failed to inform Mr. and Mrs. Taylor that there was evidence of fetal distress and that more severe and diffuse brain injury increases with the severity and duration of any hypoxic or ischemic event. 46. As a direct result of the [d]efendants' failure to fully inform Mr. and Mrs. Taylor of the true nature of Che Taylor's condition (that it reflected fetal hypoxia and/or asphyxia), and in failing to inform Mr. and Mrs. Taylor of the alternative course of treatment consisting of timely delivering their babies, Mr. and Mrs. Taylor prolonged Mrs. Taylor's pregnancy, resulting in the damages alleged in Paragraphs 29 through 31 and Paragraph 35 of this Complaint. At the conclusion of a six-day trial, the jury was required to answer several questions. jury, read: 1. Do you find, by a preponderance of evidence, that the [d]efendant, PEDRO ARRABAL, M.D., breached the standard of care in his care and treatment of [p]laintiffs, TRACY CREW-TAYLOR and CHE TAYLOR? YES If your proceed If your proceed 2. X NO The verdict sheet, as completed by the

answer to Question 1 is "YES", to Question 2. answer to Question 1 is "NO", to Question 3.

Do you find, by a preponderance of the evidence, that the [d]efendant's, PEDRO ARRABAL, M.D., breach in the standard of 3

care was a proximate cause of an injury to the [p]laintiffs, TRACY CREW-TAYLOR, CHARLES TAYLOR, and CHE TAYLOR? YES X NO

Proceed to Question 3. 3. Do you find, by a preponderance of the evidence, that the [d]efendant, PEDRO ARRABAL, M.D., failed to obtain an informed consent from the [p]laintiff, TRACY CREW-TAYLOR? YES X NO

If your answer to Question 3 is "YES", proceed to Question 4. If your answer to Question 3 is "NO", and Question 1 was "NO" stop and inform the Clerk. If your answer to Question 3 is "NO", and Question 2 was "YES", proceed to Questions 5A, 5B, & 5C. If your answer to Question 3 is "NO", and Question 2 was "NO", stop and inform the Clerk. 4. Do you find, by a preponderance of the evidence, that the [d]efendant's, PEDRO ARRABAL, M.D., failure to obtain an informed consent from the [p]laintiff, TRACY CREW-TAYLOR, was the proximate cause of injuries claimed to have been sustained? YES x NO

If your answer to Question 4 is "YES", proceed to Question 5B only.[2] If your answer to Question 4 is "NO", and Question 1 was "NO", stop and inform the Clerk. If your answer to Question 4 is "NO", and Question 2 was "YES", proceed to Questions 5A, 5B & 5C.

The court apparently intended the underlined portion to have read: "If your answers to Questions 2 and 4 are `yes,' proceed to answer Questions 5A, 5B, and 5C."

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If your answer to Question 4 is "NO", and Question 2 was "NO", stop and inform the Clerk. 5. In what amount, if any, do you find damages for the Plaintiffs, TRACY CREWTAYLOR, CHARLES TAYLOR and CHE TAYLOR for: A. Claims of the Estate of CHE TAYLOR: $ $ 636,414.90 6,651.00

Past Medical Expenses Funeral Expenses Non-Economic Damages: (pain and suffering, and other non-pecuniary damages) B.

$

200,000.00

Claims for TRACY CREW-TAYLOR

Past Medical Expenses

$

-0/s/LDC 636,414.90 10/24/02

Non-Economic Damages: (pain and suffering, mental anguish, and other non-pecuniary damages) $ 1,400,000.00 C. Claims for CHARLES TAYLOR

Non-Economic Damages: (pain and suffering, mental anguish, and other non-pecuniary damages) $ TOTAL OF DAMAGES

150,000.00

2,393,065.90 /s/LDC $ 2,036,414.90 10/24/02

Upon review of a post judgment motion filed by the defendants, the trial judge reduced Mrs. Crew-Taylor's non-economic damage award from 1.4 million dollars to $778,837.50 and reduced Charles Taylor's non-economic damages to $83,662.50. These reductions were mandated by Maryland's "cap statute," 5 which is found in

Section 11-108(b) of the Courts and Judicial Proceedings Article of the Maryland Code (2002 Repl. Vol.). The court also reduced the Except for the

award for funeral expenses from $6,651 to $3,500.

aforementioned reductions, the court, in all other respects, denied the defendants' post-trial motions for judgment notwithstanding the verdict and/or new trial and/or to alter or amend the judgment. This appeal followed.

I.

FACTUAL BACKGROUND

The appellees presented sufficient evidence, if credited by the jury, to prove that Dr. Arrabal deviated from the appropriate standard of care by failing to deliver the triplets on October 18, 2002.3 Appellants do not claim otherwise. of the facts developed at For that reason, our will be somewhat

recitation

trial

abbreviated. Mrs. Crew-Taylor arrived at the outpatient labor and deliver unit of Harbor Hospital Center at approximately 11:00 p.m. on October 17, 1998. She sought treatment because, as to one of the Personnel in

fetuses, she had noticed decreased fetal movement.

the labor and delivery unit ascertained the heart rates of the three fetuses by electronic fetal monitoring. monitoring were "non-reassuring" for each Findings from that of the triplets.

Additionally, Mrs. Crew-Taylor's blood sugar levels were found to

During the trial of this case, expert witnesses called by the plaintiffs were sharply at odds with those called by the defendants as to whether Dr. Arrabal had deviated from the appropriate standard of care in failing to deliver the triplets on October 18, 1998, rather than waiting, as he did, until the afternoon of October 19.

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be elevated, which showed that she was suffering from gestational diabetes. Gestational diabetes complicates a pregnancy and poses

serious risks to both the mother and the fetuses. Between 8:30 and 10:30 a.m. on October 18, a biophysical profile and Doppler ultrasound were performed on the umbilical cords of each of the triplets. These tests, along with electronic

fetal monitoring and fetal movement tests, were administered to determine the well being of each of the fetuses. The biophysical

profile for all three fetuses produced scores that were "nonreassuring." Of particular significance, the ultrasound of Che

Taylor's umbilical artery showed reverse diastolic flow, which indicated that Che was not getting enough nutrients and oxygen because the blood was flowing away from the placenta. Dr. Arrabal attributed the non-reassuring test results to the mother's hyperglycemia (high blood sugar). He did not consider the tests' results sufficiently adverse so as to require an immediate delivery of the fetuses, in light of the significant risk attendant to pre-term (prior to thirty-seven weeks) delivery of multiple fetuses. His plan was to continue the mother's insulin therapy and to conduct another biophysical profile the next day. Accordingly,

Mrs. Crew-Taylor was injected with intermittent shots of insulin to treat her gestational diabetes. On October 19, at 12:19 p.m., results of another biophysical profile were developed received. This profile (reduced indicated heart that and Che had

severe

bradycardia

rate)

agonal

heartbeat, which meant that he was almost terminal. 7

Dr. Arrabal

ordered an emergency Caesarian section.

All three babies were Che was born

delivered at approximately 12:40 p.m. on October 19.

severely depressed, without a heart rate or a pulse and was "close to dead." He was revived after a long period of cardio-pulmonary

resuscitation. Mrs. Crew-Taylor testified that Dr. Arrabal never informed her that any of the tests that had been administered were non-

reassuring. According to her, "the only [t]hing [she] was told was [that] everything was fine," and that she was going to stay in the hospital and be monitored due to the gestational diabetes problem. More specifically, Dr. Arrabal did not discuss with her the risks or benefits of continuing her pregnancy versus immediately

delivering the triplets.

Dr. Arrabal also did not discuss hypoxia

(insufficient oxygen) with her and what could happen to the fetuses if hypoxia was the cause of the non-reassuring test results, nor did he discuss the likely consequences if the hypoxia continued without treatment. By the time he was sued, Dr. Arrabal had no notes or

recollection as to what he had discussed with Mrs. Crew-Taylor in October of 1998 concerning the non-reassuring test results or about what, if anything, he had told the mother regarding the risks associated with continuing the pregnancy. Dr. David Feisner, an OB/Gyn from Michigan, was called as an expert witness by plaintiffs. He testified that Dr. Arrabal In regard

deviated from the standard of care in several respects.

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to the lack of informed consent claim, he testified that the doctor deviated from the standard of care because he failed to inform Mrs. Taylor what the situation was. She had numerous tests, all of which have been described as non-reassuring, and that's a situation that she should have been made aware of so that a plan of management could be formulated. Any time any person has a test it's important to let them know what's going on so that they can be aware that yes, things are okay or things are not okay. Appellants' expert, Dr. Harold Fox, on cross-examination, agreed with plaintiffs' counsel that, as a general proposition, it is reasonable for a mother to know her status and the status of her fetuses, and to be informed of the probable success of treatment alternatives, when those probabilities can be defined. Another of

appellants' experts, Dr. Donald Chambers, testified that Che's parents should have been told that the results of the biophysical profile were non-reassuring.

II.

QUESTIONS PRESENTED

The questions presented by appellants, which we have reordered and re-phrased, are as follows: 1. Did the trial court err in submitting appellees' informed consent claim to the jury because lack of informed consent must be predicated on the failure to advise of material risks and medical alternatives in the context of an affirmative treatment affecting the physical integrity of the patient under Reed v. Campagnolo, 332 Md. 226 (1993), and the continuation of a patient's pregnancy (the failure to deliver) does not qualify as such an affirmative treatment? 9

2. Assuming, arguendo, the trial court did not err in allowing the jury to consider the action for informed consent, whether the trial court nevertheless abused its discretion in restricting crossexamination of Mrs. Crew-Taylor concerning the course she would have taken if Dr. Arrabal had advised her that delivery was an option, and of the risks associated with premature delivery, including long term morbidity? 3. Did the trial court's failure to require the jury to itemize damages for both negligence and informed consent require a new trial because the award to Mrs. CrewTaylor may have improperly included damages based on informed consent? 4. Did the trial court err in submitting to the jury the estate's claim for conscious pain and suffering, instructing on such damages, and including them in the special verdict to be itemized by the jury, because the expert and lay testimony did not establish the consciousness of this fetus/infant and his capacity for pain and suffering? 5. Did the trial court err in submitting the estate's claim for medical expenses to the jury? 6. Even assuming, arguendo, that the trial court did not err in submitting the estate's claims for medical expenses to the jury, did the trial court err in restricting appellants' cross-examination of Mrs. Crew-Taylor concerning the payment of those medical expenses and in refusing to modify the jury's award to account for payments made? 7. Did the trial court err in denying appellants' post-trial motions on the grounds that the verdict was excessive, improperly based on sympathy, and the product of confusion and erroneous jury instructions?

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A.

Question 1

At the conclusion of the entire case, counsel for appellants made a motion for judgment as to the portion of plaintiffs' claim alleging lack of informed consent. Defense counsel maintained that a lack of informed consent action must be predicated "on the failure [of the health care provider] to advise [the patient] of material risks," but that duty applied only when the provider plans to provide affirmative treatment affecting the physical integrity of the patient. Counsel for the movants also contended that,

although failing to deliver the triplets on October 18 might (at least arguably) constitute a negligent breach of the expected professional standard of care, failure to explain the pros and cons of taking no immediate action would not suffice to support an action for lack of informed consent. In support of their motion,

defendants relied principally on the cases of Reed v. Campagnolo, 332 Md. 226 (1993), and Sard v. Hardy, 281 Md. 432 (1977). The first case in Maryland to recognize a cause of action for lack of informed consent was Sard. Mrs. Sard, who was pregnant for

the third time, wanted to deliver her third child but selected sterilization from among the options her doctor gave her in order to fulfill her wish of never becoming pregnant again. 436. 281 Md. at

While delivering her third child by Caesarian section, Dr.

Erving Hardy performed a bilateral tubal ligation. Id. After Mrs. Sard became pregnant for the fourth time, she and her husband sued Dr. Hardy, claiming, inter alia, that Dr. Hardy had failed to

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advise them that the surgical procedure was not absolutely certain to prevent future pregnancies. The Sards also alleged that the

doctor had failed to discuss with them alternative methods of sterilization. At the close of the Sards' case, the trial court The

directed a verdict in favor of Dr. Hardy as to all counts.

Court of Appeals reversed and held that the evidence was sufficient to warrant submitting to the jury the question of whether the information withheld by the doctor was material to Mrs. Sard's decision to have the bilateral tubal ligation. The Sard Court said: [T]he physician's duty to disclose risk information is whether such data will be material to the patient's decision: "The scope of the physician's communications to the patient, then, must be measured by the patient's need, and that need is whatever is material to the decision. Thus, the test for determining whether a potential peril must be divulged is its materiality to the patient's decision." Cobbs v. Grant, 502 P.2d at 11. By focusing on the patient's need to obtain information pertinent to the proposed surgery or therapy, the materiality test promotes the paramount purpose of the informed consent doctrine

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