Stickley v. Chisholm

765 A.2d 662

136 Md. App. 305

Charles STICKLEY, III v. Roy D. CHISHOLM, III.

No. 2962, Sept. Term, 1999.

Court of Special Appeals of Maryland.

January 18, 2001.

Martin Trpis (Ashcraft & Geral, LLP on the brief), Washington, DC, for appellant.

Frederick Goundry, III (Mary Elizabeth Kaslick and Varner, Kaslick & Goundry on the brief), Frederick, for appellee.

Argued before MURPHY, C.J., and HOLLANDER and SONNER, JJ MURPHY, Chief Judge.

In the Circuit Court for Allegany County, Charles L. Stickley, III ("Stickley"), appellant, filed a medical malpractice action against Roy D. Chisholm, III, M.D. ("Dr. Chisholm"), appellee. Prior to deliberation, the circuit court instructed the jury that in order for appellant to recover damages, the jury must find that negligence was the cause of the injury. Appellant's counsel requested that the court re-instruct the jury in accordance with Maryland Civil Pattern Jury Instruction 19:10, which states that in order for the plaintiff to recover, the jury must find that the negligence was a cause of the injury. The circuit court refused that request. The jury found in favor of appellant on the issue of whether appellee had breached the standard of care in his treatment of appellant, but found in favor of appellee on the issue of proximate cause. Appellant now presents the following questions¹ for our review:

I. DID THE TRIAL COURT MISSTATE MARYLAND LAW ON PROXIMATE CAUSE WHEN IT INSTRUCTED THE JURY THAT IN ORDER FOR APPELLANT TO RECOVER IT MUST FIND THAT THE NEGLIGENCE WAS THE CAUSE OF THE INJURY[?]

II. WAS THE TRIAL COURT'S MISSTATEMENT OF MARYLAND LAW ON PROXIMATE CAUSE PREJUDICIAL TO THE APPELLANT AND DID IT CONSTITUTE REVERSIBLE ERROR[?]

For the reasons that follow, we answer "yes" to each of appellant's questions, vacate the judgment of the circuit court, and remand for a new trial.

Background

On January 17, 1995, appellant sought treatment from appellee for a mass under his arm on the left side of his chest wall. The mass was approximately 10 x 12 centimeters in size. Concerned that the mass could possibly be cancer, appellee recommended a biopsy. Appellant agreed with that recommendation. An incisional biopsy of the mass showed that the growth was a desmoid tumor.

On January 27, 1995, appellee performed surgery to remove the tumor. When appellee received the pathology results from the January 27, 1995 surgery, he learned that the surgery might not have succeeded in removing all of appellant's abnormal cells.² At this point, appellee chose not to recommend that appellant undergo (1) further surgery, or (2) radiation therapy to kill the residual tumor cells. Rather, appellee decided to follow appellant closely to see if there would be any reoccurrence.

In June of 1995, during one of his return visits, appellant complained of pain in the incision. As appellant had returned to work, appellee felt that the pain was likely occurring from the scar tissue. On August 9, 1995, appellant returned and again complained of pain in this area. At that time, although appellee felt there was no definite tumor reoccurrence, he was concerned about the possibility of a reoccurrence, so he sent appellant for a CT scan of the area. The CT scan report stated that, "this finding is suspicious for a neoplastic process and a biopsy is recommended. Some of the soft tissue prominence could represent post-surgical fibrosis if the patient had previous surgery at this location." Appellee did not perform a biopsy.

The jury received conflicting expert testimony on the issue of causation. When it came time to instruct the jury, both parties agreed that an instruction on causation was needed. They chose Maryland Civil Pattern Jury Instruction ("MPJI") 19:10,³ which states:

To recover damages or to be barred from recovery, the negligence must be a cause of an injury. [There may be more than one cause of an injury, that is, several negligent acts may work together. Each person whose negligent act is a cause of an injury is responsible.]

The circuit court agreed to deliver that instruction. When instructing the jurors, however, the circuit court stated that, "in order for a Plaintiff to recover, the negligence alleged must be the cause of the injury."

At a post-instruction bench conference, appellant's counsel excepted to the "the cause" instruction. Meanwhile, a juror requested a clarification of the meaning of proximate cause. At this point, the following transpired:

[BY THE COURT:] Ladies and gentlemen, counsel have pointed out a couple of things to me. First I'll try to respond to your question. The definition of proximate ... The best advice I can give you is disregard the title to that instruction, which is entitled proximate and concurring causes. Concentrate on the sentence that I read to you. To recover damages, the negligence must be the cause of an injury. Does that clear it up? That's one of those lawyerly words that we probably shouldn't use any longer, but we still do. To recover for damages, the negligence must be the cause of an injury. Just concentrate on those words.

(Bench conference continued:)

[APPELLEE'S COUNSEL:] The one and two before you get to damages.

(Further instruction to the Jury)

[BY THE COURT:] With respect to... I gave you some misinformation. Refer to the special verdict form.

I told you that if your answer to the first question is no then your deliberations have ended. The question to the second... to the first ... if your answer to the first question is yes, then you need to answer question number two. And so that you're not confused, just cross through the word proximate if you want to on your copy of the form. If your answer to that question is no, you are finished. If your answer to that question is yes, then you need to go forward and consider damages.

(Bench conference continued)

[APPELLANT'S COUNSEL:] Your Honor, one other point.

[BY THE COURT:] Go ahead.

* * *

[APPELLANT'S COUNSEL:] On this particular question, if they cross off proximate, the instruction nineteen ... ten ... states that it's a cause, not the cause.

[FOREPERSON:] Your Honor.

[BY THE COURT:] Just a minute. (Counsel at bench)

[APPELLANT'S COUNSEL:] A confusing aspect of that would be what if it's argued that the cause of the injury here was the natural occurrence of the desmoid tumor.

* * *

[APPELLANT'S COUNSEL:] If it's argued that the cause of the injury was a natural occurrence of the desmoid tumor and they go no further beyond that, that they may look at it in terms of what came first. Proximate cause is a cause, not the cause, not the only cause. There may be several under the instruction. It expresses that and explains it. It's using the form of the cause rather than a cause. I request that you do have to say that it is a cause, or one of the causes without which it would not have happened.

[APPELLEE'S COUNSEL:] I don't think it's confusing at all the way it is now.

[BY THE COURT:] (unintelligible—papers rattling)

(Judge to the foreperson)

What was your question?

[FOREPERSON:] (Unintelligible—not using microphone)

[APPELLEE'S COUNSEL:] Your Honor, I think ...

[BY THE COURT:] No, if your answer to question number one is no, then you're finished. See the little sub-instruction. Okay. If you answer number one and move on to number two, again, your answer is no, you're finished.

The jury found for appellant on the issue of negligence, but for appellee on the issue of proximate cause, and this appeal followed.

Discussion

I. Negligence as THE Cause of the Injury

Appellant contends that the circuit court should not have instructed that, in order for appellant to recover, the jury must find that the negligence was the cause of the injury.⁴ When we review the adequacy of a specific jury instruction, we must determine whether the instruction "fairly and accurately set for the law applicable to the case [and was] supported by testimony or evidence presented during the case." Odenton Development Co. v. Lamy, 320 Md. 33, 43, 575 A.2d 1235 (1990); Johnson v. State, 303 Md. 487, 512, 495 A.2d 1,cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907 (1986).⁵ We are persuaded that the instruction about which appellant complains did not conform with Maryland law, because it erroneously suggested that proximate cause must be the sole cause of injury.

"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." Jacobs & Jacobs v. Flynn, 131 Md.App. 342, 354, 749 A.2d 174 (2000); See Suburban Hosp. Ass'n, Inc. v. Mewhinney, 230 Md. 480, 484-85, 187 A.2d 671 (1963). "Because of the complex nature of medical malpractice cases, ... [plaintiffs must present expert testimony] to establish breach of the standard of care and causation." Jacobs, 131 Md.App. at 354, 749 A.2d 174. See also Meda v. Brown, 318 Md. 418, 428, 569 A.2d 202 (1990). When instructing on the issue of proximate cause, the circuit court read MPJI 19:10 almost verbatim, but made two major changes:

1) "must be the cause of the injury" was substituted for "must be a cause of an injury;" and

2) the second sentence in the instruction, which provides that "there may be more than one cause of an injury ...," was omitted.

The combination of substitution and omission erroneously assigned to appellant an incorrect burden of persuasion on the issue of proximate cause.⁶ We are therefore persuaded that the causation issue was not "fairly covered by the instruction given"⁷ because the jurors were not provided with a "correct statement of the law."⁸

II. Prejudicial Error

Maryland law states that "[a] plaintiff must prove that the defendant or defendants were negligent and that negligence was a proximate cause of any injuries." Bartholomee v. Casey, 103 Md.App. 34, 56, 651 A.2d 908 (quoting Jones v. Malinowski, 299 Md. 257, 269, 473 A.2d 429 (1984)) (emphasis added). "In traditional negligence cases, the...