Billing v. Moulsdale

ANNE KELLY BILLING v. JAMES E MOULSDALE

No. 3287

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

August 6, 2020

Circuit Court for Harford County

Case No. 120C-16-002630

UNREPORTED

Meredith, Arthur, Gould, JJ.

Opinion by Gould, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

It's not often that a plaintiff loses a jury trial after winning on a summary judgment motion. But that's what happened to appellant Anne Kelly Billing in her action against appellee, Dr. James Moulsdale, on her claims for informed consent and professional negligence.

Ms. Billing alleged that when she went to her appointment with Dr. Moulsdale for an examination for kidney stones, Dr. Moulsdale used the opportunity to conduct digital examinations of her vagina and rectum, examinations that had nothing to do with the treatment of her kidney stones. The court granted Ms. Billing's motion for summary judgment on the informed consent count. Days before the trial started, the parties reached an agreement under which Dr. Moulsdale waived any defense to the informed consent claim as well as the right to challenge or dispute the court's summary judgment ruling. In return, Ms. Billing dropped her intentional tort claims and agreed to limit her recovery to $1,000,000.

Ms. Billing went to trial believing that the jury's sole task regarding her informed consent claim was to determine the amount of damages due to her. The court, however, interpreted the summary judgment opinion in a more limited way, paving the way for the jury's defense verdicts on both the informed consent and negligence counts.

Ms. Billing timely appealed and now presents the following two questions for our review:

1. "Was the trial court legally correct in requiring a causation question on the verdict sheet when liability had already been conceded?"

2. "Was [the trial court] legally correct in his interpretation and application of [summary judgment] ruling?"

For the reasons explained below, we answer both questions in the negative, and therefore vacate the judgment and remand for a new trial consistent with this opinion.

FACTS AND LEGAL PROCEEDINGS

On April 13, 2013, Ms. Billing went to the emergency room at the Upper Chesapeake Medical Center for kidney and ureteral stones. Ms. Billing had a history of kidney stones and was instructed on her discharge to see Dr. Robert Hoofnagle, the urologist who had previously treated her. Dr. Hoofnagle was unavailable, so Ms. Billing scheduled an appointment with his partner, Dr. Moulsdale.

During her appointment, Dr. Moulsdale told her to disrobe and gave her two small paper wraps to cover herself. Dr. Moulsdale touched Ms. Billing's breasts, allegedly to listen to her heart and lungs. He instructed her to lie down and remove the paper wraps, leaving her completely exposed. Dr. Moulsdale proceeded to perform digital pelvic and rectal examinations. Ms. Billing felt violated and was later diagnosed with anxiety and PTSD.

Ms. Billing filed suit against Dr. Moulsdale, alleging counts of negligence (Count I), battery (Count II), intentional infliction of emotional distress (Count III), and failure to obtain informed consent (Count IV). Ms. Billing filed a motion for partial summary judgment solely on the informed consent count, which Dr. Moulsdale opposed. The court heard oral arguments, and subsequently issued a Memorandum Opinion granting the motion (the "Memorandum Opinion"). The court stated, in part:

The parties have different versions of what Ms. Billing was told as to the physical examinations that Mr. Moulsdale was to perform. However, the focus is misplaced as to whether Ms. Billing and Dr. Moulsdale generallyagree that he informed her he would conduct a physical exam or whether Mr. Moulsdale says he specifically indicated the exam would include both a vaginal and rectal exam because she was a new patient that he had never examined before. The problem in using this dichotomy to determine whether there is a genuine dispute as to a material fact is that it ignores a dispositive material fact—whether there was a medical need or necessity for these examinations at all.

Here, Sard is instructive. The Court held "the proper test for measuring the physician's duty to disclose risk information is whether such data will be material to the patient's decision. . . [and] [t]he scope of the physician's duty to inform is to be measured by the materiality of the information to the decision of the patient." SeeSard v. Hardy, 281 Md. at 443-444.

It is clear that there was no medical value in performing these examinations. Both Dr. Hoofnagle and Dr. Fitzpatrick testified that the written report of the CAT scan provided sufficient information for the purpose of Dr. Moulsdale's assessment for treatment of Ms. Billing's kidney stones. In fact, Dr. Moulsdale conceded this point with his admission that he does not conduct a physical exam if a patient declines it. And, his reliance that consent by Ms. Billing was implied because she did not verbally object or verbally state that she was declining the physical examination before or during their occurrence is misplaced given the lack of their medical value or necessity.

Dr. Moulsdale should not perform medically unnecessary and highly intrusive examinations under the guise of treating kidney stones without disclosing information material to Ms. Billing's decision as to whether to have them. Telling her that he conducts them on all new patients omits pertinent and material information: that they were not medically necessary to either assess the treatment of her kidney stones or to actually treat them. Particularly given the highly intrusive nature of the examinations, Dr. Moulsdale should have informed her about this material fact. The decision was Ms. Billing's to make. SeeSard, 281 Md. at 443-444 ("[t]he scope of the physician's duty to inform is to be measured by the materiality of the information to the decision of the patient.").

These exams were of no medical value to Ms. Billing's treatment for kidney stones. Had she been told they were not medically necessary, she would have declined to have her bare breasts manually manipulated ostensibly to listen to her heart and lungs or to have the intrusive vaginal and rectal examinations.

Therefore, Dr. Moulsdale fell short of the scope of his duty to inform Ms. Billing about the need for the examinations. In sum, the fact that the highly intrusive examinations were medically unnecessary is the significant material fact "necessary to resolve the controversy as a matter of law[.]" D'Aoust v. Diamond, 424 Md. 549, 575, 36 A.3d 941, 955-56 (2012). And, this court finds that Plaintiff has met her burden of proof that there is no genuine dispute as to a material fact relevant to informed consent. SeeHendrix v. Burns, 205 Md. App. 1, 18, 43 A.3d 415, 425-26 (2012), reconsideration denied (June 7, 2012).

Having found that there is no genuine dispute of material fact, this court must now consider whether, on the undisputed material facts, Ms. Billing as the moving party is entitled to judgment on the claim as a matter of law. See120 W. Fayette St., LLLP v. Mayor and City Council of Balt. City, 413 Md. 309, 328-29, 992 A.2d 459 (2010); Hill v. Knapp, 396 Md. 700, 711, 914 A.2d 1193 (2007); O'Connor, 382 Md. at 110-11, 854 A.2d 1191. This court finds that to be the case, and therefore, summary judgment will be granted as to Count IV, Informed Consent. SeePiscatelli v. Smith, 424 Md. 294, 35 A.3d 1140 (2012); 120 W. Fayette St., 413 Md. at 329, 992 A.2d at 471; Maryland State Bd. of Elections v. Libertarian Party of Maryland, 426 Md. 488, 505, 44 A.3d 1002, 1012 (2012).

The court contemporaneously entered an Order (the "SJ Order," and together with the Memorandum Opinion, the "Summary Judgment"), which stated as follows:

ORDERED that the Motion for Partial Summary Judgment as to Count IV, Informed Consent, of Complaint, is hereby GRANTED; and it is further

ORDERED that the Plaintiff is granted judgment as a matter of law as to Count IV, Informed Consent.

Dr. Moulsdale promptly moved for reconsideration of the Summary Judgment, which the court denied.

Several days before trial, the parties entered into, and filed with the court, a written stipulation (the "Pretrial Stipulation"). The parties to the Pretrial Stipulation were Ms.Billing, Dr. Moulsdale, and Dr. Moulsdale's insurance carrier. The Pretrial Stipulation stated:

1. Plaintiff Dismisses the Intentional Torts, Counts II and III;

2. Plaintiff agrees to cap damages at one million dollars (policy limits) with the understanding that the Maryland cap on non-economic damages is still applicable to this case, and will not assert a claim for punitive damages;

3. Defendant will not question, appeal, request reconsideration of or dispute the correctness of the December 7, 2018 Memorandum Opinion and Order by the Honorable Angela M. Eaves Granting Summary Judgment as to Count IV, Informed Consent, in favor of the Plaintiff;

4. Defendant will not assert either in the underlying Circuit Court case or on appeal that the decision granting the Motion for Summary Judgment was in anyway error or inappropriate or assert any defense to liability on this count;

5. Defense Counsel represents to this Court that the Doctor[']s Company, insuring the Defendant, has consented to this stipulation and has withdrawn any denial of coverage or reservation of rights to deny coverage up to its policy limits.

The trial was assigned to a different judge than the one who had granted the Summary Judgment.¹ On the first day of trial, the parties and the trial court discussed the ramifications of the Summary Judgment, including what to tell the jury about it. Ms. Billing wanted to read to the jury excerpts from the Memorandum Opinion describing what Dr. Moulsdale did...