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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 5893 September Term, 1998

LISA JACOBS & SHEILA JACOBS, PERSONAL REPRESENTATIVES OF THE ESTATE OF LEO M. JACOBS v. MEADE FLYNN, ET AL

Wenner, Adkins, Smith, James T., Jr. (Specially Assigned) JJ.

Opinion by Adkins, J.

Filed: February 25, 2000

This medical malpractice case revolves around the events that led to the paralysis of Leo M. Jacobs,1 appellant/cross appellee. Mr. Jacobs brought a negligence suit against: appellees/cross appellants, Dr. Thomas MacLean, MacLean, Applestein & Kishel, M.D., P.A.; appellees, Drs. John Kishel, Marc Applestein, Meade Flynn, Gregory McCormack, and Howard County General Hospital ("HCGH"); and Dr. Jerry Seals.2 trial and a Dr. Seals settled the claim against him before by jury proceeded against the remaining

trial

defendants.

The jury returned a verdict in favor of Mr. Jacobs

against Dr. MacLean, MacLean, Applestein & Kishel, M.D., P.A. and Dr. Flynn only, and awarded Mr. Jacobs $1,240,000. The trial judge

later directed a verdict in favor of Dr. Flynn based on the applicable statute of limitations and reduced the judgment against Dr. MacLean to $620,000 based on the settlement with Dr. Seals and the application of the Maryland Contribution Among Joint TortFeasors Act. Both Mr. Jacobs and Dr. MacLean have raised a number

of issues on appeal: I. Whether the trial court erred in denying motion for judgment and motion for judgment not withstanding the verdict filed by Dr. MacLean and MacLean, Applestein & Kishel, M.D., P.A.?

Mr. Jacobs died in December 1998. This appeal has been maintained by his daughters, Lisa and Sheila Jacobs as personal representatives of his estate. For convenience, we shall refer to Mr. Jacobs as the appellant. This case was originally filed in the Circuit Court for Prince George's County but was transferred pursuant to a motion for change of venue to the Circuit Court for Howard County.
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II.

Whether the trial court erred in ruling, as a matter of law, that Mr. Jacobs's claim against Dr. Flynn was barred by the statute of limitations?

III. Whether the trial court erred in reducing the judgment against Dr. MacLean by one half pursuant to the Maryland Contribution Among Joint Tort-Feasors Act? IV. V. Whether the trial court erred by refusing to admit certain medical records? Whether the trial court erroneously instructed the jury on apparent agency?

FACTS Mr. Jacobs had been deaf and mute since birth. Despite his

disability, he had an active lifestyle and worked for the deaf community. California. In February of 1991, Mr. Jacobs was vacationing in When he arrived in California, he began to experience On February 2, Mr. Jacobs checked Freemont, California. He was

severe back pain and a fever. into Washington Hospital in

hospitalized for approximately nine days in California and treated for back pain and fever. While in the hospital, Mr. Jacobs

received treatment from Dr. Ahmed Sadiq, a specialist in oncology, and Dr. Muni Barash, a specialist in infectious diseases. Jacobs testified that he told these doctors that he Mr. was

experiencing pain in the middle of his back.

These doctors told

Mr. Jacobs that his back pain was caused by metastatic prostate cancer. After being discharged from the hospital on February 11, 2

Mr.

Jacobs

remained

in

California

and

continued

to

receive

treatment for his back pain from various health care providers. Mr. Jacobs returned to his home in Laurel, Maryland, on February 22, 1991. On February 25, 1991, Mr. Jacobs went to see Dr. MacLean. Dr.

MacLean was a urologist who had previously treated Mr. Jacobs for prostate related problems. Dr. MacLean immediately admitted Mr. That

Jacobs to HCGH in order to evaluate the cancer diagnosis.

day, Dr. MacLean ordered a blood test and a lumbosacral (lower back) spine x-ray. Dr. MacLean testified that he did not order an

x-ray for the middle of Mr. Jacobs's back because Mr. Jacobs did not inform him that he was experiencing pain in that region. Dr. MacLean testified that he had to leave town on February 26 for personal reasons. At this point, Dr. MacLean turned over Mr.

Jacobs's case to his partners, Drs. Applestein and Kishel, both urologists. Dr. Applestein testified that he began treating Mr. Jacobs on February 27 and that he called Dr. Sadiq in California and Dr. Sadiq told him that he believed that Mr. Jacobs did not have cancer. At this point, Dr. Applestein believed that Mr. Jacobs's

back pain might be caused by an infection rather than cancer. Accordingly, Dr. Applestein called Dr. Seals, an infectious Dr. Seals ordered that a number of tests be

disease specialist.

done on Mr. Jacobs, including a bone scan, in order to investigate the probability of osteomylitis, "which can also give birth to the 3

epidural abscess."

At the same time, Drs. Applestein and Kishel,

who examined Mr. Jacobs on February 28, continued to investigate possible urological causes for Mr. Jacobs's pain. By March 2, 1991, based on various tests, Drs. Applestein and Kishel ruled out urological causes for the back pain. interpreted the bone scan as normal. continued his treatment of Mr. Dr. Flynn

At this point, Dr. Seals Jacobs and called in a

rheumatologist,3 Dr. McCormack, to investigate whether Mr. Jacobs's pain was caused by a more chronic problem. Dr. MacLean again became involved with Mr. Jacobs's care on March 4, 1991. At Dr. McCormack's suggestion, Dr. MacLean ordered The MRI was not ordered on

an MRI scan of Mr. Jacobs's lower back. a "stat" basis.

As a result, the MRI scan was not performed until

March 6 and no doctor inquired as to the MRI results until March 7. Mr. Jacobs's condition worsened on March 5. On March 7, when

Mr. Jacobs reported problems with leg weakness, Drs. McCormack and Seals ordered a neurological consult. transferred to the University of Subsequently, Mr. Jacobs was Maryland Hospital. At the

University of Maryland Hospital, Mr. Jacobs was diagnosed with an epidural abscess, a pocket of pus or inflammation outside of the spinal cord. The infection from the abscess caused Mr. Jacobs to Mr.

become permanently paralyzed from the mid-waist level down.
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Dr. McCormack testified that his practice as a rheumatologist entails the diagnosis and treatment of muscular and skeletal joints, as well as diagnosis and treatment of some connective tissue diseases. 4

Jacobs required hospitalization for five months and then spent another seventeen months in an assisted living environment. died from apparently unrelated causes in December 1998. He

DISCUSSION I. The trial court properly denied Dr. MacLean's motion for judgment and judgment not withstanding the verdict. A party is entitled to a judgment not withstanding the verdict (JNOV) when the evidence at the close of the case, taken in the light most favorable to the nonmoving party, does not legally support the nonmoving party's claim or defense. See Bartholomee v.

Casey, 103 Md. App. 34, 51 (1994), cert. denied, 338 Md. 557 (1995). In reviewing the denial of a JNOV, we "'must resolve all

conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the

plaintiff's right to recover . . . .'"

Houston v. Safeway Stores,

Inc., 346 Md. 503, 521 (1997) (quoting Smith v. Bernfeld, 226 Md. 400, 405 (1961)). If the record discloses any legally relevant and

competent evidence, however slight, from which the jury could rationally find as it did, we must affirm the denial of the motion. See Franklin v. Gupta, 81 Md. App. 345, 354, cert. denied, 313 Md. 303 (1990). If the evidence, however, does not rise above

speculation, hypothesis, and conjecture, and does not lead to the 5

jury's conclusion with reasonable certainty, then the denial of the JNOV was error. See Bartholomee, 103 Md. App. at 51.

Nevertheless, "[o]nly where reasonable minds cannot differ in the conclusions to be drawn from the evidence, after it has been viewed in the light most favorable to the plaintiff, does the issue in question become one of law for the court and not of fact for the jury." Pickett v. Haislip, 73 Md. App. 89, 98 (1987), cert.

denied, 311 Md. 719 (1988). Dr. MacLean contends that the trial court erred in denying his motion for judgment and JNOV because the evidence presented at trial was not legally sufficient to establish that his negligence was the proximate cause of Mr. Jacobs's paraplegia. Specifically,

Dr. MacLean asserts that the testimony of the plaintiff's expert witnesses, Drs. David Andrews and Jack Kaufman, and the testimony of the opposition's expert witness, Dr. Bruce Ammerman, did not establish to a reasonable degree of medical probability that different conduct by Dr. MacLean would have prevented Mr. Jacobs's paraplegia. In order to establish a prima facie case of medical

negligence, a plaintiff must establish: (1) the applicable standard of care; (2) that this standard has been violated; and (3) that this violation caused the complained of harm. See Weimer v.

Hetrick, 309 Md. 536, 553 (1987) (quoting Waffen v. U.S. Dep't of Health & Human Servs., 799 F.2d 911, 915 (4th Cir. 1986)).

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As with other cases, in order to prove causation, a medical malpractice plaintiff must establish that but for the negligence of the defendant, the injury would not have occurred. Hosp. Ass'n, Inc. v. Mewhinney, 230 Md. 480, See Suburban (1963).

484-85

Because of the complex nature of medical malpractice cases, expert testimony is normally required to establish breach of the standard of care and causation. See Meda v. Brown, 318 Md. 418, 428 (1990).

Generally, we have required expert opinions to be established within a reasonable degree of probability. See Karl v. Davis, 100

Md. App. 42, 51-52, cert. denied, 336 Md. 224 (1994). Nevertheless, decisions by the Court of Appeals have held that the expert testimony itself need not establish a probable causal relationship. As the Court has previously explained:

The law requires proof of probable, not merely possible, facts, including causal relations. . . . But, sequence of events, plus proof of possible causal relation, may amount to proof of probable causal relation, in the absence of evidence of any other equally probable cause. Charlton Bros. Transp. Co., Inc. v. Garrettson, 188 Md. 85, 94 (1947) ( emphasis in original). 236 Md. 484 (1964), the For example, in Hughes v. Carter,

plaintiff claimed that she suffered Her attending

pneumonia as a result of an automobile accident.

physician testified that pneumonia "was sometimes caused by a patient being confined to bed, and sometimes it followed a

compression-type injury to the chest[,]" and that the plaintiff had 7

suffered such an injury.

Id. at 486.

The physician also testified

that the plaintiff showed no signs of pneumonia when she was treated on the night of the accident. the accident caused the pneumonia, When, however, asked whether he "[f]irst said it was

possible, then that it was probable, and finally that he would not `pin it down.'" Id. The Court held that there was sufficient

evidence of a causal connection to submit the question of causation to the jury. See id.

Relying on these decisions, we stated in Karl that an expert's testimony to a reasonable degree of probability is not always essential to prove causation; rather, a plaintiff's burden of proof will be satisfied by expert testimony "with respect to causation as to what is possible if, in conjunction with that testimony, there is additional evidence of causation introduced at trial that allows the finder of fact to determine that issue." 52. Karl, 100 Md. App. at

Therefore, our inquiry on appeal is whether, based on the record, a reasonable jury could have found that the

entire

negligence of Dr. MacLean was a proximate cause of Mr. Jacobs's paraplegia. Reasonable "[p]robability exists when there is more evidence in favor of a proposition than against it (a greater than 50% chance that a future consequence will occur)." Cooper v. Hartman, 311 Md. 259, 270 (1987) (quoting Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 666 (1983)) (emphasis omitted). 8 For example,

in Franklin an expert testified about five instances where the standard of care was breached and testified that the patient's condition would have been less likely to occur absent the breach. See Franklin, 81 Md. App. at 361. satisfied the causation element. We held that this testimony "[The expert concluded] `the

events would have not occurred, or would have been less likely to have occurred . . . .' We find that sufficient." Id.

Likewise, in Meda, the plaintiff claimed that her arm was injured because it was improperly secured while she was under anesthesia during an operation. See Meda, 318 Md. at 425-26. The

expert in Meda could not testify exactly how the arm was injured, but rather, relied on circumstantial evidence in forming his The Court of Appeals found this testimony sufficient to

opinion.

reverse the trial court's grant of a JNOV because "the facts had support in the record, and the reasoning employed was based upon logic rather than speculation or conjecture." Id. at 428.

Both Mr. Jacobs and Dr. MacLean presented expert witnesses to testify regarding causation and the probability that Mr. Jacobs's condition could have been prevented. A major focus of the

testimony of these experts was on the question of whether Mr. Jacobs's condition could have been prevented by surgery. Dr. David Andrews, a neurosurgeon, testified on behalf of Mr. Jacobs regarding an causation. He stated surgery that is "in most cases He

[involving

epidural

abscess]

indicated."

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explained: Only in instances where patients are neurologically intact would we consider watching them medically, i.e. just treating them with antibiotics and examining them carefully over time. . . . The most compelling picture [for surgery] is one in which a patient has a documented epidural abscess, is on the appropriate antibiotics and starts losing neurological function. That's a situation in which neurosurgeons would then intervene and operate on the spine to open up the canal, debride the area, obtain specimens to make sure you have the appropriate antibiotic coverage . . . . Dr. Andrews testified that Mr. Jacobs was a candidate for treatment by a neurosurgeon at HCGH. The following exchange also took place between Dr. Andrews and Mr. Jacobs's counsel: [COUNSEL]: Do you have an opinion to a reasonable degree of professional probability as to whether or not Mr. Jacobs'[s] paraplegia could have been prevented or would have been prevented had Mr. Jacobs been referred to a neurosurgery unit such as yourself by March 1, 1991? [DR. ANDREWS]: He could have been paralyzed under any circumstance. The best chance of neurologic recovery or maintenance of normal neurological function however would have probably . . . been with neurological intervention. [COUNSEL]: Were there any indications in Mr. Jacobs'[s] course from [March 1] on that would have indicated to a neurosurgeon that he was a candidate for either surgical intervention or some other therapy? [DR. ANDREWS]: Yes.

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Dr. Andrews testified that MRI exams taken on Mr. Jacobs's back after the March 8 myelogram showed spinal cord compression. Dr. MacLean's expert witness, Dr. Ammerman, opined that Dr. MacLean's negligence was not the proximate cause of Mr. Jacobs's paraplegia because Mr. Jacobs never had compression in his spinal cord. "Cord compression," he said, was "pressure on the spinal cord," "as though I were to take my hands and put them around somebody's neck and squeeze." Dr. Ammerman opined that only

patients who have an epidural abscess caused by cord compression are viable surgical candidates. He explained, however, that cord

compression is the most common way in which an epidural abscess causes damage to the spinal cord: The most common is that there is compression on the spinal cord itself . . . . [T]hat compression, that pressure causes a lack of blood flow to the spinal cord and the spinal cord has a stroke and the patient becomes paralyzed. . . . In some patients they don't have compression. The inflammation is enough in this group to cause the blood vessels to become inflamed and to block up, to stop working. During cross-examination, Dr. Ammerman acknowledged that if Mr. Jacobs had a spinal cord compression, he would have been a viable surgical candidate, and surgery should have been performed immediately. Although Dr. Ammerman testified that a myelography4

performed on Mr. Jacobs on March 8, 1991, showed no signs of cord compression, he reluctantly admitted that an MRI performed on March
4

A myelogram is a type of x-ray test. 11

7, 1991, showed Mr. Jacobs had spinal cord compression: [Counsel]: Now did the MRI that you looked at on March the 7th, 1991 show evidence of cord compression? * * * [Dr. Ammerman]: It's described as showing displacement of the cord posteriorly. . . . [Counsel]: correct? Well, that's cord compression,

[Dr. Ammerman]: That's what they're describing in this report, correct. [Counsel]: So as of March 7th, 1991 the MRI does show evidence of cord compression, correct? [Dr. Ammerman]: The person who described this, does. As it turns out on the myelogram, which I have reviewed, which is the gold standard, the film was over read, because there is no cord compression. In light of the agreement by Dr. Andrews and Dr. Ammerman that Mr. Jacobs was a viable candidate for surgery if he had cord compression in his spine, we think it reasonable for the jury to infer that Dr. MacLean's failure to refer Mr. Jacobs to a

neurologist had a causal relation to his paralysis.

Dr. MacLean's

expert, Dr. Ammerman, acknowledged that the most common type of epidural abscess is that caused by a cord compression. He further

agreed that surgery should be performed immediately when it is discovered that a patient suffers from spinal cord compression. The MRIs done on March 7 and after showing cord compression provided the jury with evidence that Mr. Jacobs did, in fact have 12

cord compression.

As we indicated, the expert testimony itself

need not establish the probable cause relationship, and the jury may rely on other circumstances. 94. See Charlton, Bros., 188 Md. at

While Dr. Ammerman challenged the significance of the MRI

showing that there was cord compression, the jury was free to disregard his testimony, and conclude that Mr. Jacobs suffered from cord compression. If the jury concluded that cord compression was

present, its conclusion that Mr. Jacobs's paraplegia probably would have been prevented, absent Dr. MacLean's negligence, is supported by the testimony of both experts and the evidence offered at trial. Although none of the doctors who testified could state to a medical certainty that Mr. Jacobs would not have been paralyzed if he was immediately referred to a neurosurgeon, the test is one of

reasonable probability. See Karl, 100 Md. App. at 51-52. The evidence regarding causation was not limited to the There was also expert testimony that

curative effect of surgery.

Mr. Jacobs would not have been paralyzed if he had received appropriate treatment. antibiotic therapy throughout the course of his

On cross-examination, Dr. Ammerman testified that when

a patient has an epidural abscess, but no spinal cord block, the patient should be treated with antibiotics and "many times . . . that's the end of it[,] [t]he patient does not become paraplegic." Additionally, Dr. Andrews testified that Mr. Jacobs was a candidate for antibiotic therapy and explained how the treatment should be

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properly initiated and monitored. internist, who testified as an

Moreover, Dr. Jack Kaufman, an expert witness regarding the

standard of care, stated that antibiotic treatment "will usually work." The jury could have reasonably concluded that the failure

to give proper antibiotic treatment caused Mr. Jacobs's paralysis. Accordingly, the trial court did not err in denying the motion for JNOV.

II. The trial court did not err by ruling as a matter of law that Mr. Jacobs's action against Dr. Flynn was barred by the statute of limitations. Mr. Jacobs's claim against Dr. Flynn is based on the theory that Dr. Flynn negligently reported the bone scan given to Mr. Jacobs on March 2, 1991, as "normal," when the bone scan showed the presence of an epidural abscess. Dr. Flynn was not a defendant in

the initial suit and was not added as a defendant until May 8, 1995. Dr. Flynn moved for summary judgment in both the Health

Claims Arbitration Office ("HCAO") and the circuit court based on the statute of limitations. At the close of the evidence in the circuit court, the trial judge granted judgment in favor of Dr. Flynn, holding that Mr. Jacobs's claim was barred by the statute of limitations. court explained: I believe that the Plaintiff's claim against Dr. Flynn is barred by the limitations. . . . I believe the Plaintiff has to within the 14 The

statute, within three years, has to have discovered his injury. I don't believe that he need[s] to know the mechanics of his injury. I don't even know that he need[s] to know with specificity who caused his injury. The evidence in this case is, that in the spring of `91, he realized that he was paralyzed and that it was the product of negligence. I think he then was put on notice, go out and muster your case, drum up a case against whoever you think caused your injuries. . . . [I]n the spring of '91, the Plaintiff, his two daughters, realized that, or had reason to believe, well specifically, that he had been injured likely as the result of negligence on parts of physicians associated with likely his hospitalization in Howard County. . . . [N]o reasoning juror as I see it could conclude that in the spring of `91 he wasn't aware of his injury. . . . [A]nd that's the issue. Mr. Jacobs argues that the trial court erred by treating the date Mr. Jacobs discovered he was injured as the accrual of his cause of action. He asserts that: (1) the limitations period did

not begin to run until he was on notice of his claim against Dr. Flynn; and (2) reasonable minds could differ as to whether Mr. Jacobs, in the exercise of due care and diligence, would have discovered his claims against Dr. Flynn by May 8, 1992. We

disagree with Mr. Jacobs and affirm the judgment in favor of Dr. Flynn on the limitations ground. A trial court should grant a motion for summary judgment only when the movant clearly demonstrates the absence of any genuine issue of material fact and demonstrates that it is entitled to judgment as a matter of law. See Beatty v. Trailmaster Prods.

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Inc., 330 Md. 726, 737 (1993).

In determining whether the grant of

a motion for summary judgment is appropriate, the "reviewing court [should] resolve all inferences to be drawn from the pleadings, admissions, and affidavits, etc. against the moving party."

Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 145 (1994). The statute of limitations applicable in this case is three years from the date the injury was discovered. 1998 Repl. Vol.),

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