MEHLMAN v. POWELL

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Docket Number

[No. 39, September Term, 1977.]

Attorney(S)

James P. Salmon, with whom were Sasscer, Clagett, Channing Bucher on the brief, for appellant Edward S. Mehlman. David A. Levin, with whom were O'Malley, Miles, Farrington McCarthy on the brief, for appellant Holy Cross Hospital of Silver Spring, Inc. Roy L. Mason, with whom were William A. Ehrmantraut and Donahue Ehrmantraut on the brief, for appellant Ruben C. Cosca. Carl Harrison Lehmann for appellee Charlotte W. Powell, with whom were Alan R. Siciliano and O'Malley, Miles, Farrington McCarthy on the brief, for appellee Holy Cross Hospital of Silver Spring, Inc.

Judges

ELDRIDGE, J., delivered the opinion of the Court.

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Smart Summary

Factual and Procedural Background

This medical malpractice case arose from the death of William Powell in May 1974. Beginning in December 1973, Mr. Powell experienced symptoms including shortness of breath and consulted his personal physician, who referred him to Dr. Edward Mehlman, a specialist. Despite tests in April 1974, no conclusive diagnosis was made, and it was alleged that a standard perfusion lung scan, which was not performed, would have revealed pulmonary embolic disease that could have been treated. On May 28, 1974, when Mr. Powell was incapacitated, he was taken to the Holy Cross Hospital emergency room, where Dr. Ruben Cosca misdiagnosed his condition as pneumonitis after incorrectly reading an electrocardiogram showing gross abnormalities. Consequently, Mr. Powell was released and died on May 30, 1974, with an autopsy confirming pulmonary embolism as the cause of death.

The widow and minor children filed suit against Dr. Mehlman, Dr. Cosca, Holy Cross Hospital, and others, alleging negligence causing wrongful death. A jury found in favor of the plaintiffs and awarded $221,000 against the defendants. Additionally, a judgment was entered in favor of the Hospital against Dr. Cosca on a cross-claim for indemnity. The defendants appealed to the Court of Special Appeals, but before that court decided, the Court of Appeals granted certiorari.

Legal Issues Presented

Whether Holy Cross Hospital is liable for the negligence of the emergency room physician, Dr. Cosca, under the doctrine of apparent agency despite no actual master-servant relationship.
Whether Dr. Cosca's negligence was a proximate cause of Mr. Powell's death or whether subsequent negligence by other parties superseded his liability.
Whether the Hospital's regulation prohibiting emergency room physicians from admitting patients constituted actionable negligence contributing to Mr. Powell's death.
Whether the trial court erred in admitting expert medical testimony when the factual predicate for the opinions was partially outside the evidence introduced to the jury.

Arguments of the Parties

Appellants' Arguments

The Hospital argued that Dr. Cosca and other emergency room physicians were independent contractors, not employees, and thus the Hospital was not liable for their negligence.
Dr. Cosca contended that the plaintiffs failed to prove his negligence was the proximate cause of death because subsequent negligence by Dr. Mehlman and a Hospital employee intervened, breaking the causal chain.
Dr. Cosca also argued that the trial court's jury instruction that the Hospital had no independent negligence might have prejudiced his indemnity claim.
Dr. Mehlman challenged the admission of expert testimony from Dr. Rodman on the basis that the factual foundation for the opinions was not fully before the jury.

Appellees' Arguments

The plaintiffs argued that Dr. Cosca was either actually or apparently an employee of the Hospital, making the Hospital vicariously liable for his negligence.
They asserted that the Hospital's control over the emergency room and the lack of notice to patients that the emergency room was franchised to independent contractors supported an apparent agency relationship.
The plaintiffs maintained that Dr. Cosca's negligence was a proximate cause of death and that subsequent negligence by others was concurrent, not superseding.
They supported the admission of Dr. Rodman's expert opinions, emphasizing that the factual bases were presented to the jury and supported by evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
B.P. Oil Corp. v. Mabe, 279 Md. 632, 370 A.2d 554 (1977)	Doctrine of apparent agency under Restatement (Second) of Agency § 267; liability for harm caused by apparent agents when third party justifiably relies on representation of agency.	The Court applied this principle to hold that the Hospital, by representing the emergency room as part of its services, was liable for Dr. Cosca's negligence despite no actual employment relationship.
Stanhope v. Los Angeles College of Chiropractic, 54 Cal.App.2d 141, 128 P.2d 705 (1942)	Apparent agency exists when a hospital does not notify patients that certain services are provided by independent contractors.	The Court found the situation analogous, supporting the conclusion that the emergency room physician was an apparent agent of the Hospital.
State v. Hecht Co., 165 Md. 415, 169 A. 311 (1933)	Subsequent negligence constitutes a defense only if it is a superseding cause breaking causal connection.	The Court held that subsequent negligence by others was concurrent, not superseding, and did not relieve Dr. Cosca of liability.
Conowingo Power Co. v. State of Maryland, 120 F.2d 870 (4th Cir. 1941)	Principles regarding proximate cause and superseding negligence.	Used to support the conclusion that concurrent negligence does not break causal liability.
Prosser, Law of Torts § 44 (4th ed. 1971)	Legal treatise on proximate cause and superseding cause doctrines.	Referenced to explain that only superseding causes interrupt liability.
Brawner v. Hooper, 151 Md. 579, 135 A. 420 (1926)	Concurrent negligence by third parties does not affect a defendant’s liability.	Applied to reject Dr. Cosca's argument that others’ negligence relieved him of proximate cause.
State, Use of Solomon v. Fishel, 228 Md. 189, 179 A.2d 349 (1962)	Expert witness testimony requires the jury to be informed of the factual basis for opinions, which must be supported by evidence.	The Court found that the expert’s opinions were properly admitted because the factual predicates were adequately presented to the jury.
Greenstein v. Meister, 279 Md. 275, 368 A.2d 451 (1977)	Further authority on admissibility of expert opinion and factual foundation requirements.	Supported the Court’s conclusion that expert testimony was properly admitted in this case.

Court's Reasoning and Analysis

The Court first addressed the Hospital's liability for Dr. Cosca's negligence. It acknowledged the Hospital’s argument that Dr. Cosca was an independent contractor and that no actual master-servant relationship existed. However, the Court emphasized the doctrine of apparent agency, relying on the Hospital’s control through regulations, the integrated physical setting of the emergency room within the Hospital, and the absence of any notice to patients that emergency room physicians were independent contractors. The Court distinguished this from the B.P. Oil Corp. v. Mabe case by noting that unlike products sold at a branded station, medical services inherently imply reliance on the hospital itself. Thus, the Hospital was held liable as if the emergency room physicians were its employees.

Regarding proximate cause, the Court rejected Dr. Cosca's argument that subsequent negligence by other physicians and hospital employees interrupted causation. Citing established Maryland precedent and tort principles, the Court held that subsequent negligence must be a superseding cause to relieve liability, which was not demonstrated here. The negligence of others was concurrent, so Dr. Cosca's failure remained a proximate cause of death.

The Court also considered the Hospital's internal regulation barring emergency room physicians from admitting patients. Even assuming this regulation breached medical standards, the Court found no causal connection between the regulation and Mr. Powell’s death, since the denial of admission was based on Dr. Cosca's misdiagnosis. Thus, there was no independent Hospital negligence contributing to the death.

Finally, the Court addressed the evidentiary challenge to expert testimony. It reaffirmed the principle that expert opinions must be grounded in facts presented to the jury. The Court found that Dr. Rodman’s opinions were accompanied by detailed factual bases supported by evidence introduced at trial. The jury was adequately informed of the factual predicate, so the trial court properly admitted the expert testimony.

Holding and Implications

The Court affirmed the judgments entered against the defendants and in favor of the plaintiffs. It held that Holy Cross Hospital is vicariously liable for the negligence of its emergency room physician under the doctrine of apparent agency despite no actual employment relationship. The Court confirmed that Dr. Cosca’s negligence was a proximate cause of death, unaffected by subsequent concurrent negligence. It also ruled that the Hospital’s regulation did not constitute actionable negligence due to lack of causation, and that expert testimony was properly admitted.

The direct effect of this decision is to uphold the jury verdicts and judgments in favor of the plaintiffs. No new precedent was set beyond the application and reinforcement of existing principles concerning apparent agency, proximate cause, and expert testimony admissibility.

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EDWARD S. MEHLMAN ET AL. v. CHARLOTTE W. POWELL ET AL

NEGLIGENCE — AGENCY — Hospital Liable For Negligence Of Emergency Room Physician Under Doctrine Of Apparent Agency. Where hospital emergency room was physically part of the Hospital, and where there was nothing to put emergency room patient on notice that the emergency room was franchised to an independent contractor, the Court held that even assuming no actual master-servant relationship between emergency room physician and Hospital was established, the Hospital had represented to the patient that the emergency room staff were Hospital employees, and that the Hospital could be held liable for the negligence of an emergency room physician under the doctrine of apparent agency. pp. 272-275

NEGLIGENCE — Proximate Cause — Subsequent Negligence Of Third Party Constitutes Defense Only If It Is A Superseding Cause Of Plaintiff's Injury — Third Party's Concurrent Negligence Does Not Affect Defendant's Liability. Where emergency room physician's failure to correctly interpret decedent's electrocardiogram resulted in misdiagnosis of pulmonary embolism, the Court held that the subsequent failure of another physician to acquaint himself with decedent's true clinical condition, as well as the alleged failure of a Hospital employee to notify emergency room physician of a subsequent correct interpretation of the decedent's electrocardiogram, presented a case of concurring negligence and did not affect liability of emergency room physician as a proximate cause of decedent's death. pp. 275-276

NEGLIGENCE — Proximate Cause — Causal Connection Between Alleged Negligent Act Or Omission And Plaintiff's Injuries — No Causal Connection Shown Between Hospital's Regulations And Patient's Death. Where decedent was not admitted to hospital because of misdiagnosis by emergency room physician, the Court held that a Hospital regulation requiring the patient's private physician to admit him was not evidence of actionable negligence by the Hospital because there was no causal connection between the regulation and the decedent's death. pp. 276-277

WITNESSES — Experts — Opinion Testimony — Jury Must Be Informed Of Facts Or Assumed Facts Upon Which Expert's Opinion Is Based — Facts Upon Which Opinion Is Based Must Be Supported By Evidence. Where facts upon which medical expert based his opinions were supported by material introduced into evidence, the Court held that the trial court did not err in admitting the opinion testimony. pp. 277-278

J.A.A.

ELDRIDGE, J., delivered the opinion of the Court.

This is a medical malpractice action which arose out of the following circumstances. Beginning in December 1973, Mr. William Powell experienced shortness of breath and other discomfort which led him, in March 1974, to consult his personal physician. Mr. Powell's physician, after administering a variety of tests, referred Mr. Powell to Dr. Edward Mehlman, a specialist in internal medicine. On April 5 and again on April 15, 1974, Mr. Powell visited Dr. Mehlman's office and further tests were performed. The results of these tests were inconclusive. It was alleged in the trial court proceedings that, given the symptoms displayed by Mr. Powell, standard medical procedure would have included the administration of a perfusion lung scan. Dr. Mehlman did not administer this procedure. It was further contended that the perfusion lung scan would have revealed that Mr. Powell was suffering from pulmonary embolic disease, and that this disease could have been successfully treated had the correct diagnosis been made.

On May 28, 1974, Mr. Powell was unable to get out of bed. His wife telephoned Dr. Mehlman's office but was unable to reach him, and the decision was made to take Mr. Powell to Holy Cross Hospital. He was received in the Holy Cross Hospital emergency room by Dr. Ruben Cosca. Dr. Cosca ordered an electrocardiogram, a physicial examination, x-rays and other tests, and consequently made an initial diagnosis of pneumonitis. It was undisputed at trial that the electrocardiogram revealed gross abnormalities, and that Dr. Cosca's reading of the electrocardiogram was erroneous. It was claimed that, on the basis of the electrocardiogram and other available evidence, Dr. Cosca should have known that Mr. Powell was in imminent danger of dying from heart failure due to pulmonary embolism.

As a result of the diagnosis of pneumonitis, Mr. Powell was released from the Hospital and returned to his home. Mr. Powell died on the morning of May 30, 1974, without receiving further medical attention. An autopsy revealed pulmonary embolism to have been the cause of his death.

The widow and minor children of William Powell brought this action in the Circuit Court for Montgomery County against, inter alia, Dr. Edward Mehlman, Dr. Ruben Cosca and Holy Cross Hospital, claiming that the defendants had negligently caused the death of William Powell. A jury returned a verdict in favor of the plaintiffs and against the above-named defendants for $221,000, and judgments for this amount were entered. A judgment was also entered in favor of the Hospital and against Dr. Cosca, on the Hospital's cross-claim against Dr. Cosca for indemnity. The defendants took appeals from these judgments to the Court of Special Appeals, and, prior to any decision in the Court of Special Appeals, this Court issued a writ of certiorari.

(1)

In the trial court, the plaintiffs argued that Dr. Cosca, the emergency room physician, was either actually or apparently an employee of the Hospital, and that, consequently, the Hospital was vicariously liable for the negligent acts of Dr. Cosca.

The Hospital, at the close of evidence, moved for a directed verdict on the ground that the plaintiffs had failed to establish any master-servant relationship between Dr. Cosca and the Hospital, and the Hospital now claims that the trial court's denial of this motion was in error.

The Hospital argues that Dr. Cosca, with other physicians, operated the Hospital emergency room as independent contractors, and that the Hospital and the Hospital emergency room were separate entities. Therefore, the argument continues, there was no actual master-servant relationship between Dr. Cosca and the Hospital, and the Hospital cannot be liable for Dr. Cosca's negligence. We note, however, that the record shows that the Hospital subjects the emergency room to a degree of control through its regulations. For example, one regulation provides that an emergency room physician does not have the authority to admit patients to the Hospital. This must be done by the patient's private physician. The record also shows that all billing for emergency room services is done by the Hospital, not the emergency room physicians.

Nevertheless, we will assume arguendo that no actual master-servant relationship between Dr. Cosca and the Hospital was established. We still believe that the trial court was correct in its denial of the Hospital's motion for a directed verdict.

In B.P. Oil Corp. v. Mabe, 279 Md. 632, 643, 643, 370 A.2d 554 (1977), this Court endorsed § 267 of Restatement (Second) of Agency, which provides in part:

"One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such." (Emphasis supplied.)

B.P. Oil Corp. v. Mabe, supra, concerned a plaintiff who drove into a BP service station where an attendant apparently poured gasoline instead of water into the radiator, resulting in a fire which injured the plaintiff. No actual agency relationship between the operator of the station and B.P. Oil Corp. was found to have been established. Although a number of signs read "BP," and there were no signs indicating private ownership, this Court held that the circumstances in the case were not sufficient for the jury to infer that the plaintiff had justifiably relied on B.P. Oil Corp. to provide the desired services. Speaking for the majority of the Court, Judge Smith noted that it is commonly known that a substantial number of service stations are independently owned, and stated (279 Md. at 649):

". . . [The plaintiff] said he was attracted to Faison's station by `[n]othing except for the [fact that it was a] BP station, [and it] had BP signs, BP gas, BP pumps.' This, added to the statement of Mabe that his reason for choosing the station in question was that he `always buy[s] BP gasoline, always deal[s] with BP,' is but little different from a statement that one always buys a particular make of shoes, wears clothes with a certain label, drives an automobile produced by a certain manufacturer, eats a certain brand of breakfast cereal, or smokes a certain kind of cigarette."

The Hospital argues that the circumstances of the instant case are analogous. Although there were no signs or any other indications that the emergency room was not run by the Hospital staff, the Hospital contends that, as in B.P. Oil Corp. v. Mabe, supra, these appearances do not justify reliance.

We disagree. First, in B.P. Oil Corp. v. Mabe, supra, it was necessary to distinguish between the products offered for sale and the automotive services provided by the attendant. The mere fact that BP products are advertised for sale does not, in itself, justify the inference that BP is as well directly providing automotive services. The Hospital, however, is engaged in the business of providing health care services. One enters a hospital for no other reason. When Mr. Powell made the decision to go to Holy Cross Hospital, he obviously desired medical services and equally obviously was relying on Holy Cross Hospital to provide them. Furthermore, the Hospital and the emergency room are located in the same general structure. In this regard, it is as if a customer were to purchase automotive services on the premises of the BP refinery or on the premises where the corporate headquarters were located.

In the instant case, all appearances suggest and all ordinary expectations would be that the Hospital emergency room, physically a part of the Hospital, was in fact an integral part of the institution. It is not to be expected, and nothing put Mr. Powell on notice, that the various procedures and departments of a complex, modern hospital like Holy Cross are in fact franchised out to various independent contractors. The situation seems to us substantially similar to that in Stanhope v. Los Angeles College of Chiropractic, 54 Cal.App.2d 141, 128 P.2d 705 (1942), where the court, holding that an apparent agency existed between a hospital and an independent radiologist, stated (128 P.2d at 708):

". . . [The] appellant did nothing to put respondent on notice that the X-ray laboratory was not an integral part of appellant institution, and it cannot seriously be contended that respondent, when he was being carried from room to room . . . should have inquired whether the individual doctors who examined him were employees . . . or were independent contractors."

We thus hold that Holy Cross Hospital represented to the decedent that the staff of the Holy Cross Hospital emergency room were its employees, thereby causing the decedent to rely on the skill of the emergency room staff, and that the Hospital is consequently liable to the decedent as if the emergency room staff were its employees.

(2)

The emergency room physician, Dr. Cosca, had also moved for a directed verdict in the trial court. Dr. Cosca argues that the denial of this motion was error, contending that the plaintiffs had failed to establish that Dr. Cosca's negligence was a proximate cause of Mr. Powell's death.

It was conceded that Dr. Cosca failed to correctly interpret an electrocardiogram taken of the decedent in the Hospital emergency room on May 28, 1974. Dr. Cosca claims, however, that the subsequent failure of Dr. Mehlman to acquaint himself with the true clinical condition of the decedent, as well as the alleged failure of an employee of the Hospital to notify Dr. Cosca of a subsequent correct interpretation of the decedent's electrocardiogram, were intervening acts of negligence which interrupted the causal connection between Dr. Cosca's negligence and Mr. Powell's death.

The fallacy in Dr. Cosca's contention is that the subsequent negligence would constitute a defense only if it were a superseding cause of the decedent's injury. State v. Hecht Co., 165 Md. 415, 169 A. 311 (1933); Conowingo Power Co. v. State of Maryland, 120 F.2d 870 (4th Cir. 1941); Prosser, Law of Torts § 44 (4th ed. 1971). Clearly, however, it was not a superseding cause. Dr. Cosca's failure to correctly interpret the decedent's electrocardiogram continued to be a proximate and efficient cause of the patient's death, despite the fact that it may have been subsequently accompanied by the negligent omissions of others. The negligence of a third party, which merely operates along with a defendant's negligence, presents an ordinary case of concurring negligence and does not affect the liability of the defendant. Brawner v. Hooper, 151 Md. 579, 135 A. 420 (1926).

Dr. Cosca further argues that the trial court erred in instructing the jury that there was no evidence of any independent negligence by the Hospital causing Mr. Powell's death and that the Hospital could only be held liable upon an agency theory. It is argued that this instruction may have prejudiced Dr. Cosca with regard to the Hospital's cross-claim for indemnity against him.

In contending that there was evidence of actionable negligence by the Hospital itself, Dr. Cosca relies on testimony to the effect that, under the Hospital's regulations, an emergency room physician did not have the right to admit patients to the Hospital and that only the patient's private physician was allowed to admit him. With regard to this regulation of Holy Cross Hospital, there was testimony by Dr. Rodman that:

"It is wrong. It is unethical to tie [the emergency room physician's] hands and put him in a position where he cannot admit the patient. That is contrary to prevailing standards. . . . It is an egregious breach of prevailing medical standards."

Assuming, however, that the Hospital's regulation does constitute a breach of prevailing medical standards, in the instant case the record shows that the judgment to deny Mr. Powell admission was based on Dr. Cosca's faulty diagnosis. That is, the evidence did not establish a causal connection between the regulation and Mr. Powell's death.

We are constrained, therefore, to agree with the trial court's conclusion that there was no evidence of any independent negligence on the part of Holy Cross Hospital which contributed to Mr. Powell's death.

(3)

The principal issue raised by Dr. Mehlman is an evidentiary question. Dr. Mehlman contends that the plaintiffs' expert witness, Dr. Rodman, should not have been allowed to express opinions concerning whether Dr. Mehlman had complied with the appropriate standards of care in his treatment of Mr. Powell, on the ground that no factual predicate for these opinions had been established.

At the beginning of his testimony, Dr. Rodman said that he had familiarized himself with Mr. Powell's history by reviewing various medical records, depositions and answers to interrogatories. While the medical records were introduced into evidence, only portions of the depositions and answers were introduced. Dr. Mehlman contends that Dr. Rodman's opinions may thus have been based on material not available to the jury and that, consequently, the jury had "no way of knowing the factual predicate on which he based his opinion."

It is well settled that an expert witness may not deliver his opinions in a factual vacuum. As this Court said in State, Use of Solomon v. Fishel, 228 Md. 189, 198, 179 A.2d 349 (1962):

"The jury must be informed of the facts or assumed facts upon which the expert's opinion is based and there must be evidence to support such facts, but it is for the jury to determine whether they exist or not and, if the jury's finding on controverted questions of fact is contra to the premise upon which the expert bases his opinion, his opinion falls with the premise."

See, in addition, Greenstein v. Meister, 279 Md. 275, 285, 368 A.2d 451 (1977), and cases there cited. However, in our examination of the testimony in the instant case, we have found that all of the opinions offered by Dr. Rodman concerning Dr. Mehlman's violations of the applicable standard of care due Mr. Powell were accompanied by or prefaced with a full statement of the facts on which Dr. Rodman was relying, as well as the reasons why such facts were pertinent. All of these facts were supported by the material introduced into evidence.

It is not argued that there were in fact statements prejudicial to Dr. Mehlman in those portions of the interrogatories and depositions which were not introduced into evidence, which might have contributed to Dr. Rodman's opinions about Dr. Mehlman's treatment of Mr. Powell. Further, it cannot seriously be contended that the mere statement by Dr. Rodman that he had reviewed material not introduced into evidence would mislead the jury as to the factual predicate of his opinions. An examination of Dr. Rodman's testimony reveals that the jury was fully apprised of the factual basis for his opinions, and that this factual basis was supported by the evidence in the case. Therefore, we conclude that the trial judge properly allowed Dr. Rodman to give his opinion as to whether Dr. Mehlman's treatment of Mr. Powell complied with the prevailing standards of medical care.

Judgments affirmed.

Appellants to pay costs.