Opinion
Civ. No. H-98-2239.
August 1999.
MEMORANDUM AND ORDER
At the time of the matters in suit, Evan Schmidt ("Evan") was an eight year old boy who suffered from a congenital condition known as Dandy Walker Syndrome. On July 14, 1995, while he was vacationing with his parents near Ocean City, Maryland, he became ill. He was taken to and initially treated at the emergency room of Peninsula Regional Medical Center ("Peninsula Regional") in Salisbury, Maryland. Later that day, he was transported by helicopter to Children's Hospital of Philadelphia ("CHOP") where, after further treatment, he died in the early morning hours of July 15, 1995.
Evan's parents have here filed a medical malpractice action alleging that their child's death was caused by the negligence of various named defendants. Suit has been brought by William Schmidt and Michelle Schmidt as personal representatives of the Estate of Evan Schmidt, deceased, and by William and Michelle Schmidt as surviving parents of Evan Schmidt, deceased. Named as defendants are Peninsula Regional, Dr. Julius Zant, Drs. Bellis and Zant, P.A. and Medlantic Health Care Group, Inc., d/b/a Washington Hospital Center ("Medlantic"). Medlantic has filed a third-party complaint against Corporate Jets, Inc. ("Corporate Jets").
Both wrongful death and survival claims have therefore been asserted.
Pursuant to Scheduling Orders entered by the Court, the parties have engaged in extensive discovery. Presently pending before the Court is a motion to dismiss or for summary judgment filed by defendant Peninsula Regional and a motion for summary judgment filed by third-party defendant Corporate Jets. The parties have submitted lengthy memoranda and voluminous exhibits in support of and in opposition to the pending motions, including excerpts from depositions taken during discovery. A hearing on the pending motion has been held in open court. For the reasons stated herein, the motion to dismiss of defendant Peninsula Regional will be granted, and the motion for summary judgment of defendant Peninsula Regional will be denied. The motion for summary judgment of third-party defendant Corporate Jets will be granted.
I Background Facts and Claims
At his birth, Evan was diagnosed as having the congenital condition known as Dandy Walker Syndrome. At four weeks of age, a shunt was inserted in his brain which diverted cerebral spinal fluid from the brain to the peritoneal cavity. The primary physician who treated the child over the years was Dr. Leslie Sutton, a pediatric neurosurgeon at CHOP.
While Evan was vacationing in Ocean City with his parents on July 14, 1995, he complained of a headache and vomited. He was taken to Peninsula Regional in Salisbury, Maryland after another hospital had informed Evan's parents that a neurosurgeon was not available. Upon arrival at Peninsula Regional, Evan was first seen by Dr. Richard Klug, the emergency physician on duty, and a CT scan of the child's head was ordered. The scan revealed the presence of a Dandy Walker cyst, and Evan's parents explained to the hospital staff that they suspected that a blocked shunt was causing his headache and vomiting. After Evan's vital signs deteriorated, he was seen at Peninsula Regional by Dr. Scott Hamilton (a pediatrician) and by defendant Zant (a neurosurgeon). Dr. Zant tapped the shunt which indeed had been blocked and noted some improvement of Evan. According to the Schmidts, Dr. Zant informed them that although he had performed shunt revisions in the past, he was not a pediatric neurosurgeon. The Schmidts were told that Evan should be immediately transported by helicopter to CHOP to be treated by Dr. Sutton at that institution.
Michelle Schmidt, Evan's mother, originally contacted Atlantic General Hospital in Berlin, Maryland but was told that there was no neurosurgeon on the Atlantic General staff.
Medlantic provides interstate helicopter ambulance service in the Maryland and Washington, D.C. area through its MedSTAR unit. Helicopters used by MedSTAR are owned and operated by Corporate Jets pursuant to a contract between Medlantic and Corporate Jets.
MedSTAR stands for "Medical Shock Trauma and Acute Resuscitation Unit."
A helicopter was ordered from Medlantic at approximately 4:20 p.m. The helicopter left Medlantic's Washington, D.C. location at approximately 5:40 p.m. with Pilot Rod Calloway, paramedic Clifton Dalton and flight nurse Martha Scheulen on board. It did not take off from Peninsula Regional with Evan until shortly after 7:00 p.m. At his deposition, Dr. Zant testified that he instructed Dr. Hamilton to fly on the helicopter with Evan in case his condition deteriorated during the flight. The parties dispute whether personnel of defendant Medlantic permitted Dr. Hamilton to accompany Evan during the flight. In any event, Dr. Hamilton did not accompany Evan on the trip to Philadelphia. During the flight, Evan's condition deteriorated and, although after arrival he was treated at the CHOP operating room, Evan died on July 15, 1995, some time after 2:00 a.m.
Plaintiffs assert that Evan's death was caused by the negligence of Drs. Klug, Hamilton and Zant and that defendant Peninsula Regional is legally responsible for the negligence of Drs. Zant and Hamilton under a theory of vicarious liability. In addition, plaintiffs contend that Peninsula Regional is liable to them for violating federal law. Medlantic has been sued because it allegedly delayed in arranging for the emergency helicopter flight. Medlantic in turn has asserted under a theory of negligence a third-party claim against Corporate Jets seeking contribution and indemnification.
Drs. Klug and Hamilton have not been separately sued as individuals in this case.
No direct claim has been asserted by plaintiffs in this case against Corporate Jets.
II Peninsula Regional's Motion to Dismiss
Besides charging defendant Peninsula Regional with medical malpractice, plaintiffs contend that they are entitled to recover damages from this hospital under the private cause of action provisions of the Consolidated Omnibus Budget Reconciliation Act ("COBRA") and the Emergency Medical Treatment and Active Labor Act ("EMTALA"), codified at 42 U.S.C. § 1395dd(d)(2)(A). However, there is no reference in the complaint to any claim asserted by plaintiffs under COBRA/EMTALA. Defendant Peninsula Regional contends that since plaintiffs have failed to properly plead such a cause of action, they cannot be permitted to recover under the COBRA/EMTALA provisions. The Court would agree.A cause of action for private enforcement of COBRA/EMTALA regulations is separate and distinct from a medical malpractice cause of action asserted under Maryland law. Brooks v. Maryland General Hospital, 996 F.2d 708, 710 (4th Cir. 1993). Plaintiffs argue that the complaint can be construed as alleging against defendant Peninsula Regional a COBRA/EMTALA claim as well as a claim of medical malpractice. On the record here, this Court concludes that there is no merit to this contention.
Fair notice of plaintiffs' federal claim against defendant Peninsula Regional has not been provided by the allegations of the complaint. At the very least, there should have been some direct reference to the federal statute. Furthermore, plaintiffs' federal claim should have been included in a separate count pursuant to Rule 10(b), F.R.Civ.P. Somewhat different evidence is required for proof of a COBRA/EMTALA claim from that necessary for a medical malpractice claim.
Only diversity jurisdiction is alleged to exist, and there are various references in the complaint to Maryland statutes.
Moreover, for the reasons discussed hereinabove, plaintiffs may not at the trial offer evidence seeking to prove that Peninsula Regional was, under Maryland law, negligent because it violated COBRA/EMTALA. Absent fair and timely notice in the complaint of their reliance on violations by Peninsula Regional of COBRA/EMTALA, plaintiffs may not present such a claim to the jury.
Plaintiffs have requested in the alternative that they be permitted to amend the complaint to include a claim under the provisions of COBRA/EMTALA. It is much too late for any such amendment. Pursuant to provisions of the Scheduling Order and the Revised Scheduling Order, the time for amending pleadings has passed. A final pretrial conference is now scheduled for September 22, 1999, and the trial of this case is to commence on October 4, 1999. Defendant Peninsula Regional would be prejudiced if it were required at this late date to defend against this federal claim which was not included in the complaint.
For all these reasons, the Court concludes that plaintiffs' complaint fails to state a claim under the provisions of COBRA/EMTALA upon which relief may be granted. Accordingly, plaintiffs' COBRA/EMTALA claim must be dismissed.
III Summary Judgment Principles
The principles to be applied by this Court in considering a motion for summary judgment under Rule 56, F.R.Civ.P., are well established. A party moving for summary judgment bears the burden of showing the absence of any genuine issue of material fact and that the movant is entitled to judgment as a matter of law.Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). Where, as here, the nonmoving party will bear the ultimate burden of persuasion at trial, "the burden on the moving party [at the summary judgment stage] may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In Phoenix Sav. Loan, Inc. v. Aetna Cas. Co., 381 F.2d 244, 249 (4th Cir. 1967), the Fourth Circuit Court of Appeals summarized the principles applicable under Rule 56 as follows: "It is well settled that summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances."Id. Hence, the party opposing a motion for summary judgment is entitled to all favorable inferences which can be drawn from the evidence. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970); Cram v. Sun Life Ins. Office, Ltd., 375 F.2d 670, 674 (4th Cir. 1967).
The party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact.Barwick, 736 F.2d at 958. This burden is met by consideration of affidavits exhibits, depositions and other discovery materials.Id. Nevertheless, "[t]he facts, and the inferences to be drawn from the facts, must be viewed in the light most favorable to the party opposing the motion." Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir. 1987), cert.denied, 484 U.S. 897 (1987) (citing Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985)).
Following its review of the record here, this Court has concluded that the disputed issues of negligence which arise in this case under plaintiffs' claims against defendant Peninsula Regional cannot be resolved before trial by way of defendant's pending motion for summary judgment. However, there is no evidence in the record indicating that Corporate Jets was negligent in any way when it provided a helicopter to transport Evan to Philadelphia.
Under Maryland law, negligence is doing something that a person using ordinary care would not do or not doing something that a person using ordinary care would do. MPJI 19:1. Ordinary care means that caution, attention or skill a reasonable person would use under similar circumstances. Id. Negligence is a relative term and must be decided upon the facts of each particular case. Fowler v. Smith, 240 Md. 240, 246 (1965). As the Court of Appeals has stated in an oft-quoted passage in that case (Id.):
Ordinarily [negligence] is a question of fact to be determined by the jury, and before it can be determined as a matter of law that one has not been guilty of negligence, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn. . . . And Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury. The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury. (Emphasis supplied.)See also Giant Food, Inc. v. Scherry, 51 Md. App. 586, 592 (1982).
Insofar as plaintiffs' claims of negligence against defendant Peninsula Regional are concerned, there are a number of disputed questions of material fact which cannot now be determined on this record as a matter of law. Insofar as third-party plaintiff's claim of negligence against third-party defendant is concerned, there is no evidence in this record of negligence on the part of Corporate Jets, and that issue is therefore appropriate for resolution as a matter of law. Accordingly, Peninsula Regional's motion for summary judgment will be denied, and Corporate Jets' motion for summary judgment will be granted.
IV Peninsula Regional's Motion for Summary Judgment
In support of its motion for summary judgment, defendant Peninsula Regional first contends that Dr. Zant was not one of its employees and that it therefore cannot be held vicariously liable for his negligence. Dr. Zant is a neurosurgeon with offices in Salisbury, Maryland. As a private practitioner, he had privileges at Peninsula Regional. A principal is vicariously liable for the negligence of its agent when there is a master-servant relationship but not when the agent is merely an independent contractor. Hunt v. Mercy Medical Center, 121 Md. App. 516, 545 (1998); Sanders v. Rowan, 61 Md. App. 40, 51 (1984). An exception to this rule is when there is apparent agency as defined inRestatement (Second) of Agency, § 267, which has been adopted by the Court of Appeals of Maryland. See Hunt, 121 Md. App. at 547. The question presented here is whether there is sufficient evidence that Dr. Zant was the apparent agent of defendant Peninsula Regional for that issue to be presented to the jury.
Viewing the facts of record in a light favorable to the plaintiffs, this Court concludes that the issue of apparent agency cannot be determined at this time by way of Peninsula Regional's pending motion for summary judgment. There is evidence indicating that the Schmidts could properly have assumed that all the doctors and staff who treated Evan at Peninsula Regional, including Dr. Zant, were acting on behalf of the hospital. Peninsula Regional undertook to provide medical care to Evan and to furnish doctors and staff to treat him. The Schmidts could justifiably rely upon the care and skill of Dr. Zant as that owed by the hospital. Moreover, evidence of negligence on Dr. Zant's part exists in this record, and all of that negligence occurred at the hospital itself. Under these circumstances, the Court is satisfied that there is a genuine issue of material fact concerning the liability of Peninsula Regional for the negligence of Dr. Zant under the theory of his apparent agency. See Mehlman v. Powell, 281 Md. 269 (1977).
Plaintiffs also seek a recovery from defendant Peninsula Regional for the negligence of Dr. Hamilton who was concededly an employee of the hospital. In seeking summary judgment as to this claim, defendant contends that facts of record establish as a matter of law that Dr. Hamilton was not negligent.
As the Court of Appeals has noted, Maryland courts have held that meager evidence of negligence is sufficient to carry a case to the jury. Fowler, 240 Md. at 246. On the record here, this Court concludes that evidence exists that Dr. Hamilton did not act with due care on the afternoon of July 14, 1995 and that there is evidence of a causal relationship between his negligence and Evan's death. When Evan left on the helicopter, his condition was life threatening. In his deposition, Dr. Hamilton admitted that it was important for him to be on board as a medical doctor to be in a position to tap the shunt if Evan's condition deteriorated during the flight. Although Dr. Hamilton claims that Evan was stable when he left, one of plaintiffs' experts has testified that Dr. Hamilton allowed Evan to be transferred to CHOP even though he was unstable. Dr. Zant has testified that it was important for Dr. Hamilton to be on board the helicopter during the trip and that, had he known that Dr. Hamilton would not be going, it would have been reasonable to insert a butterfly in the shunt to relieve the pressure. According to Dr. Zant, he did not know that Dr. Hamilton was not going with the helicopter. Dr. Sutton has testified that delay in doing the shunt revision put Evan at the risk of death. According to Dr. Sutton, Dr. Zant should have tapped the shunt at Peninsula Regional.
Based on evidence of record, the jury could reasonably conclude that Dr. Hamilton should have either insisted on being present during the helicopter flight to Philadelphia, or should have advised Dr. Zant that he would not be going so that appropriate measures could have been taken at Peninsula Regional to relieve pressure before the trip. That Dr. Hamilton took neither action is evidence of negligence. Knowing that Evan was facing a life threatening condition during the helicopter trip, Dr. Hamilton had a duty to act reasonably to insure that the child's health did not dangerously deteriorate during the trip to Philadelphia. Accordingly, the Court is satisfied that disputed questions of material fact exist as to the negligence of Dr. Hamilton. Since Dr. Hamilton was an employee of defendant Peninsula Regional and was acting within the scope of his employment, Peninsula Regional is vicariously liable for negligence of his which proximately caused Evan's death. It will be for the jury to decide these questions of negligence and causation.
Since disputes of material fact exist as to whether Peninsula Regional can be held vicariously liable for the negligence of Dr. Zant and as to whether Dr. Hamilton was negligent, the motion for summary judgment of defendant Peninsula Regional must be denied.
V Corporate Jets' Motion for Summary Judgment
In moving for summary judgment, third-party defendant Corporate Jets contends that there is no evidence of negligence on its part which would permit a recovery against it by third-party plaintiff Medlantic for contribution or indemnification. Pursuant to an agreement between these two parties, Corporate Jets undertook to defend and hold harmless Medlantic for any damages for which Medlantic was held responsible as a consequence of the negligence of Corporate Jets. In opposing the pending motion for summary judgment of Corporate Jets, Medlantic contends that Dr. Hamilton was not permitted by a member of the Corporate Jets "flight crew" to accompany Evan on the flight to Philadelphia. According to Medlantic, this constituted actionable negligence.
Besides Evan, there were three persons on board the helicopter when it arrived at Peninsula Regional, namely Pilot Rod Calloway, paramedic Clifton Dalton and flight nurse Martha Scheulen. Dalton and Scheulen were employees of Medlantic. To prevail against Corporate Jets, Medlantic must therefore prove that Pilot Calloway acted negligently in not permitting Dr. Hamilton to be on board during the flight to Philadelphia. There is no such evidence of negligence in the record here.
Dr. Hamilton testified at his deposition that it was the paramedics who refused to permit him to accompany Evan during the flight. In referring to the paramedics, he included MedSTAR nurse Scheulen. This testimony has not been contradicted. There is no evidence that Dr. Hamilton even talked to Pilot Calloway or that it was Pilot Calloway who told him he could not be on board during the flight.
In opposing Corporate Jets' motion for summary judgment, Medlantic relies on the testimony of nurse Scheulen. At her deposition, she testified that she had heard of occasions when a doctor was permitted to board a helicopter during an emergency flight like the one at issue. She was asked if she knew any policy of MedSTAR that would prevent a doctor's request to accompany a patient from being carried out. She stated that to the best of her knowledge, "it's the Pilot's discretion" whether or not a request of this sort should be granted, "with the medical crew giving input." This testimony does not constitute meager evidence or even a scintilla of evidence of negligence on the part of Corporate Jets. There is no indication in this record that, in carrying out the policy mentioned by nurse Scheulen, it was Pilot Calloway who refused to permit Dr. Hamilton to make the trip. A jury could not reasonably infer from facts of record here that it was Calloway who made the ultimate decision that Dr. Hamilton would not be permitted to accompany Evan during the flight.
In the absence of evidence of negligent conduct on the part of any of its personnel, Corporate Jets' motion for summary judgment must be granted.
VI Conclusion
For all the reasons stated, Peninsula Regional's motion to dismiss will be granted and the motion for summary judgment of Corporate Jets will be granted. Accordingly, it is this ______ day of August, 1999 by the United States District Court for the District of Maryland,
ORDERED:
1. That the motion to dismiss of defendant Peninsula Regional Medical Center is hereby granted;
2. That plaintiffs' claim against defendant Peninsula Regional Medical Center under COBRA/EMTALA is hereby dismissed;
3. That the motion for summary judgment of defendant Peninsula Regional Medical Center is hereby denied;
4. That the motion for summary judgment of third-party defendant Corporate Jets, Inc. is hereby granted; and
5. That judgment is hereby entered in favor of Corporate Jets, Inc. on the third-party claim of Medlantic Health Care Group, Inc., d/b/a Washington Hospital Center, with costs.