ENZO MARTINEZ, A MINOR, BY AND THROUGH HIS PARENTS AND NEXT FRIENDS, REBECCA FIELDING AND ENSO MARTINEZ, et al.
THE JOHNS HOPKINS HOSPITAL
Eyler, Deborah S., Graeff, Berger, JJ.[*]
This case involves a medical malpractice action filed in the Circuit Court for Baltimore City. Appellant and cross-appellee, Enzo Martinez ("Martinez"), a minor, by and through his parents,  alleged that appellee and cross-appellant, The Johns Hopkins Hospital ("the Hospital"), negligently failed to perform a timely Caesarean section, causing Martinez to suffer from cerebral palsy, retardation, and other disorders.
After a two week trial, a jury awarded Martinez $4 million for lost wages, $25 million for future medical expenses, and $26 million for non-economic damages. The court entered judgment in favor of Martinez in the amount of $55 million. Thereafter, the Hospital filed a motion for new trial, to alter or amend judgment, and for remittitur. The trial court denied the Hospital's request for a new trial. The trial court further reduced the jury's award for lost wages from $4 million to $2, 621, 825, and reduced the jury's $26 million award for non-economic damages to $680, 000. Martinez filed a notice of appeal on September 18, 2012. The Hospital filed a cross-appeal on September 19, 2012.
Martinez presents one question for review, which we have rephrased as follows:
1. Whether the circuit court erred by reducing the jury's non-economic damages award on the basis that Maryland's cap on non-economic damages is unconstitutional because it violates the separation of powers doctrine under the Maryland Declaration of Rights.
The Hospital presents four questions for review, which we have reordered and rephrased as follows:
1. Whether the circuit court abused its discretion by precluding evidence regarding the standard of care applicable to nurse-midwives, and a midwife's breach of that standard of care while treating Ms. Fielding.
2. Whether the circuit court abused its discretion by admitting evidence that Ms. Fielding was never offered general anesthesia.
3. Whether there was sufficient evidence to support a jury award of $25 million for Martinez's future medical expenses.
4. Whether the circuit court abused its discretion by declining to annuitize the jury award.
For the reasons set forth below, we hold that the circuit court erred in precluding evidence of the nurse-midwife standard of care, and in precluding evidence of a breach of that standard of care by a nurse-midwife while treating Ms. Fielding. Accordingly, we reverse the judgment of the Circuit Court for Baltimore City and remand for further proceedings. For guidance on remand, we shall also address whether the circuit court erred in admitting evidence regarding the offering of general anesthesia.
FACTUAL AND PROCEDURAL BACKGROUND
On March 25, 2010, Ms. Fielding began labor with her first child, Martinez. Ms. Fielding elected to have a natural birth at home, with the assistance of Evelyn Muhlhan, a registered nurse midwife ("Midwife Muhlhan"), and a doula.
Ms. Fielding (who was 10 days overdue) was in labor for 14.5 hours during the first stage of labor, and at least five hours more in the second stage of labor. The position of the baby was occiput posterior. This means that the baby's head was down; however, unlike the usual presentation, he was facing forward instead of inward, toward Ms. Fielding's spine. At 12:30 a.m., Midwife Muhlhan attempted to expedite delivery while at Ms. Fielding's home. First, Midwife Muhlhan applied fundal pressure  to Ms. Fielding two or three times. Second, Midwife Muhlhan injected Ms. Fielding multiple times with Pitocin, a hormone that increases the strength and frequency of contractions. Third, misjudging the state of her labor, Ms. Muhlhan performed an episiotomy, which is a procedure performed upon immediate delivery in which the perineum is cut in order to enlarge the vaginal opening. Finally, Ms. Muhlhan directed Ms. Fielding to cleanse herself with a probiotic treatment, as an alternative to taking antibiotics, in order to prevent the potentially fatal transmission of Group B streptococcus bacteria (for which Ms. Fielding had tested positive), to the baby during labor and delivery. After providing these treatments, Midwife Muhlhan "decided it was time to go to the hospital." Midwife Muhlhan sutured the episiotomy and called an ambulance.
Ms. Fielding arrived at the Hospital at 3:30 a.m. on March 26, 2010. Ms. Fielding was an unknown patient to the Hospital. The Hospital's labor and delivery team evaluated Ms. Fielding's status and the best way to deliver her baby. The team also applied a fetal heart rate monitor. The medical records indicate that the descent level of the baby was assessed as station when Ms. Fielding arrived at the Hospital. The baby remained at after they gave Ms. Fielding a chance to push a few times.
At 3:45 a.m., Dr. Christopher Ennen, the treating physician, and Dr. Sherrine Ibrahim, the attending senior resident physician, determined that Ms. Fielding would be unable to deliver Martinez vaginally. Rather, the Hospital's physicians concluded that an "urgent" Caesarean section was required. The Hospital's physicians determined that an "emergency" Caesarean section was not required because the fetal heart rate monitor indicated that the fetus was being adequately oxygenated.
The Hospital team took Ms. Fielding's medical history and drew blood for laboratory testing. The blood tests were sent to the Hospital's laboratory on a "stat" basis, meaning they were the "highest" priority and should be completed "as quickly as possible." The Hospital explained at trial that the blood testing was necessary in order to determine whether it would be safe to administer spinal/epidural anesthesia to Ms. Fielding during the Caesarean section procedure. The Hospital also administered IV penicillin to Ms. Fielding to reduce the risk of passing her Group B streptococcus bacteria on to Martinez. Further, the Hospital obtained Ms. Fielding's consent for spinal/epidural anesthesia, administered medications to reduce the strength of Ms. Fielding's contractions, and made other pre-delivery preparations.
Some of the laboratory test results were returned at 3:57 a.m. The tests showed a negative result for syphilis. At 4:14 a.m., the Hospital re-ordered the remaining blood tests, which related to Ms. Fielding's blood type and platelet count. The remaining laboratory test results were returned at 4:52 a.m. The Hospital determined that, based upon the test results, it would be safe to use spinal/epidural anesthesia for Ms. Fielding's Caesarean section. The anesthesia was administered and Ms. Fielding was prepared for surgery. At 4:57 a.m., the Hospital transported Ms. Fielding to the operating room. Martinez was delivered at 5:40 a.m., and his condition at birth was poor. He now suffers from cerebral palsy, retardation, and other disorders.
Martinez, by and through his parents, filed a complaint alleging that the Hospital negligently failed to perform a timely Caesarean section. In short, Martinez argued that "had [Martinez] been delivered by 4:15 a.m., as the standard of care required, he would not have suffered any injury." Further, Martinez argued at trial that the Hospital also "fail[ed] to recognize ominous signs of fetal distress." Martinez contended that the Hospital should have converted to an emergency Caesarean section based on the status of Martinez's fetal heart rate monitor. Accordingly, Martinez concluded that the Hospital was also negligent in performing an urgent Caesarean section, rather than an emergency Caesarean section.
The Hospital argued that Midwife Muhlhan was solely responsible for Martinez's injuries, and, therefore, that Martinez's injuries "occurred a number of hours prior to the delivery and prior to the arrival at Johns Hopkins." Additionally, the Hospital argued that the timing in performing the urgent Caesarean section was medically necessary in order to evaluate the effects of Midwife Muhlhan's treatment on Ms. Fielding. The Hospital posited that the delay in receiving blood tests was due, in part, to Ms. Fielding's lack of cooperation. Finally, the Hospital maintained that an emergency Caesarean section was not required because the fetal heart rate monitor indicated that the fetus was being adequately oxygenated.
After a two week trial, a jury awarded Martinez $4 million for lost wages, $25 million for future medical expenses, and $26 million for non-economic damages. The court entered judgment in favor of Martinez in the amount of $55 million. Thereafter, the Hospital filed a motion for new trial, to alter or amend judgment, and for remittitur. After a two day hearing, the trial court denied the Hospital's request for a new trial, and reduced the jury's award for lost wages from $4 million to $2, 621, 825. The trial court further ruled that the Maryland cap on non-economic damages ("the Cap") was constitutional, and reduced the jury's $26 million award for non-economic damages to $680, 000 in accordance with the Cap. Martinez noted this timely appeal, and the Hospital also noted its timely cross-appeal on the following day. Additional facts relevant to the issues on appeal are summarized below.
A. Motion in Limine
Martinez filed a pre-trial motion in limine seeking to exclude testimony regarding the standard of care applicable to Midwife Muhlhan, and Midwife Muhlhan's alleged breach of that standard of care while treating Ms. Fielding. The Hospital filed an extensive response, arguing that the midwife standard of care, and Midwife Muhlhan's breach of that standard of care, were relevant to the Hospital's defense. The Hospital's theory was that the Hospital was not negligent, nor was it a cause of any injury to Martinez. Rather, the Hospital contended, the injury was solely caused by Midwife Muhlhan's negligence before Ms. Fielding ever arrived at the Hospital.
In support of its opposition to the motion in limine, the Hospital attached an order from the Maryland Board of Nursing ("the Board"), which suspended Midwife Muhlhan's certification and license to practice as a nurse-midwife. The order provided that the Board had never authorized Midwife Muhlhan to perform home deliveries, and concluded that Midwife Muhlhan had violated the Nurse Practice Act ("NPA") based upon the care that she provided to Ms. Fielding and other patients. In particular, as to the care rendered to Ms. Fielding, the Board found that:
[Midwife Muhlhan] violated the NPA during her care of [Ms. Fielding] for reasons including, but not limited to, the following:
i. Practicing as a CRNM in a home delivery setting without an approved Agreement that includes home births and practicing without a collaborating physician for homebirths.
ii. Lack of documentation, including labor and delivery records and fetal monitoring strips, regarding the patient's intra-partum course.
iii. Failing to treat the patient's GBS per Center for Disease Control guidelines and lack of documentation that the patient declined and understood the risks of declining antibiotics.
iv. Performing an episiotomy when the baby's head was not crowning and the baby was at station.
v. Administering Pitocin intramuscularly to augment labor and failing to document any fetal monitoring after administration.
vi. Using or directing the use of fundal pressure, which is not considered an acceptable practice to hasten vaginal delivery.
Accordingly, as a result of the treatment that Midwife Muhlhan provided to Ms. Fielding and four other individuals, the Board suspended Midwife Muhlhan's certification and license to practice as a nurse-midwife. The Board took emergency action to suspend Midwife Muhlhan's license on the basis that "the public health, safety or welfare imperatively require[d] emergency action[.]"
Additionally, the Hospital attached to its response to the motion in limine an excerpt from Dr. Katz's deposition. Dr. Katz determined that when Ms. Fielding arrived at the Hospital, there was evidence of "uterine tetany" due to the Pitocin administered by Midwife Muhlhan. Dr. Katz explained that, as a result, there was no relaxation in between contractions. Relaxation between contractions is important, Dr. Katz testified, because this is when "there is re-establishment of blood flow and there is proper oxygen exchange." By contrast, Dr. Katz stated that "[w]hen you have lack of relaxation, there is no opportunity for exchange to happen[, ] or less opportunity, and that can very adversely affect fetal oxygen status." Dr. Katz concluded that because of the Pitocin injections administered by Midwife Muhlhan, there was an "absence of oxygen [to Martinez which] is what ultimately caused damage."
Dr. Katz further observed in his deposition testimony that Martinez had "cephalic hematoma, which cannot be explained except by trauma . . . and the cause of that, of course, is the trying to force a head that was in a unique form through a narrow pelvis . . . [and by] try[ing] to force it with oxytocin, excessive stimulation or by pushing on the fundus or by exposing it to five hours of second stage [labor] when it's not making progress." Further, Dr. Katz explained that:
[The] baby's head [was] in occipital-posterior being banged against a pelvis for several hours with somebody pushing on the top of the baby trying to push it out between the labia, so much so to deform it that reportedly it was crowning . . . . And then [the baby went] all the way back up, not being delivered successfully . . .
Based upon this treatment, Dr. Katz concluded that injury was caused to Martinez "during those times when [Midwife Muhlhan was] hitting and beating up on this baby."
Finally, Dr. Katz's deposition testimony provided that fundal pressure is no longer used in labor and deliveries, and that applying fundal pressuring during the second stage of labor in these circumstances constituted a breach of the standard of care.
After holding a hearing, the trial court granted Martinez's motion in limine, ruling that, "[t]here cannot be testimony as to what the standard of care is for midwives or that this was a breach of the standard of care . . . ." In support of its ruling, the trial court explained:
. . . . The issue here is the standard of care, whether or not, Hopkins breached the standard of care and whether that conduct caused [the injuries].
Not somebody else's breach of a standard of care. Not somebody else's negligence. [The Hospital's] conduct [is what is relevant], because if [Midwife Muhlhan] breached the standard of care [but] caused no damage, then it's totally irrelevant . . . . [or it could be that] she didn't breach the standard of care, [but] caused the damage . . . .
. . . if you have testimony as far as causation. You have testimony that fundal pressure was applied at home, before she came to Hopkins, and if you have causation testimony . . . . [t]hen why do you have to tell the jury that -- and that is a breach of standard of care, that's negligence to do that.
I just -- I'm concerned about the potential prejudice from the jury feeling there is a third-party here, who is not a party to the action.
Accordingly, the trial court concluded that, as to Midwife Muhlhan's conduct, only evidence regarding causation was relevant. The trial court, therefore, limited the Hospital to presenting evidence of: (1) the physical actions and conduct of Midwife Muhlhan; and (2) the reactions of the Hospital personnel when learning of this conduct.
B. Testimony Regarding Midwife Muhlhan
The following is a summary of the relevant testimony introduced at trial regarding the treatments used by Midwife Muhlhan.
i. Midwife Muhlhan's Use of Pitocin
The Hospital asked its treating physician, Dr. Ennen, about his reaction when he learned that Ms. Fielding was given "two to three injections intramuscular, or IM injections, of Pitocin at home." Dr. Ennen replied that his reactions were "[s]urprise and shock." Dr. Ennen then explained that "Pitocin is something that we use in the hospital through an IV to -- in very carefully monitored doses to cause uterine contractions to be more frequent and/or stronger. It's never, in my experience that I know of, used as injections in the muscle in a non-monitored situation to cause labor to progress."
The Hospital also offered testimony from Ms. Naomi Cross ("Nurse Cross"), the nurse primarily responsible for Ms. Fielding's nursing care. However, upon Martinez's objection, the trial court precluded Nurse Cross from giving her first-hand account of how Midwife Muhlhan's actions affected her management of Ms. Fielding, or her experience with Pitocin. The trial judge did not elaborate on the basis for precluding this testimony.
The Hospital's expert witness, Dr. Katz, provided the following opinion on Midwife Muhlhan's use of Pitocin:
The Pitocin further aggravated the ability of the fetus to deal with the circumstances presented to it. And that was after the huge dose of Pitocin was given.
When asked to clarify what he meant by a "huge dose, " Dr. Katz explained:
I assume that even if I take the lowest potential measurable dose that one can give by injection, it is 1, 000 fold more than what you give in a hospital . . . . The concentration of Pitocin in the vial that is available commercially is one unit per milliliter. To give the jury an idea of what a milliliter is, we have in a small tablespoon -- correction, in a small teaspoon, we have about five milliliter. That will be approximately five units or 50, 000 milliunits. In that little teaspoon. We in the hospital give usually one, two, five or 10 milliunits, not thousands of milliunits. So you have an aurea difference here, even with the smallest syringe.
Martinez's expert witness, Dr. Balducci, also addressed the use of Pitocin:
What I perceive here is the midwife had given a shot of IM or sub-q Pitocin . . . . And it sounds like they gave one milliunit, which is a very small dose, to enhance the contractions.
The following exchange ensued during Dr. Balducci's cross-examination:
Q: And the bottom line is that if you have that overstimulation situation [from use of Pitocin], it can cause lack of perfusion to the baby, and, therefore, lack of oxygen to the baby; is that correct?
A: That could occur.
Q: Can result in a severe lack of oxygen and, ultimately, neurological ...