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IN THE COURT OF APPEALS OF MARYLAND

No. 108

September Term, 1996

___________________________________

THE JOHNS HOPKINS HOSPITAL

v.

TRAVIS PEPPER, et al. ___________________________________

Bell, C.J. Eldridge Rodowsky Chasanow Karwacki Raker
Murphy, Robert C. (retired, specially assigned)

JJ. ___________________________________ Opinion by Karwacki, J. Chasanow, J., concurs in result only. ___________________________________ Filed: August 22, 1997

This medical malpractice action requires us to apply our holding in Garay v. Overholzer, 332 Md. 339, 631 A.2d 429 (1993). In Garay, we concluded that a negligently-injured minor child may make a claim for medical expenses in his or her own name if, inter alia, the parents of the child are unable to meet those expenses. We are specifically asked whether the minor plaintiff in the case sub judice made a sufficient proffer of evidence to have the jury consider his claim for pre-majority medical expenses. Being convinced that he did, we shall affirm the judgment of the Court of Special Appeals.

I. Travis Pepper was born on January 6, 1987, at Easton Memorial Hospital suffering from certain genetic disorders which manifested themselves, in part, in a condition medically described as "Tetralogy of Fallot" with pulmonary atresia. In laymen's terms, Travis suffered at birth from both heart and lung abnormalities. During formation, his heart developed a septal defect allowing blood to flow between the right and left ventricles. Compounding the problem was a portal restriction between Travis's heart and pulmonary artery. Both conditions conspired to send unoxygenated blood to Travis's aorta. See generally MERK MANUAL OF DIAGNOSIS AND THERAPY, Ch. 190, 2059 (Robert Berkow, M.D., et al., eds. 1992); DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 156 (28th Ed. 1994).

The physicians attending Travis determined that the appropriate course of action was to transport him to Johns Hopkins Hospital ("Hopkins"). Hopkins surgeons concluded that Travis's condition would be treated best by two separate surgical procedures -- the first to correct the blood flow problem between his heart and pulmonary artery and the second to repair the hole in his ventricular septum. In April of 1987, four-month-old Travis underwent the first of the proposed operations. Travis's surgery met with post-operative complications, ultimately leading to cardiac arrest. Though doctors were able to revive Travis, severe neurological impairment followed from the resultant oxygen deprivation. The second proposed corrective procedure was never performed. Approximately eight months later, Travis's parents contacted an attorney who solicited from Hopkins all hospital records relating to Travis's surgery. A subsequent four year period of silence followed from the Peppers. That silence was broken when Terry and Linda Pepper1 and Travis, through his parents and next friends, filed suit against Hopkins on March 23, 1993.2 Count I of the Peppers' six-count complaint, which claimed damages on behalf of Travis individually, alleged that Hopkins, through its employees, negligently failed to treat Travis's condition as non-emergent, negligently failed to undertake alternative and
1

Terry and Linda Pepper are the parents of Travis Pepper.

Although the Peppers initially filed their claim before the Health Claims Arbitration Office on March 5, 1993, pursuant to Maryland Code (1989 Repl. Vol., 1993 Supp.),

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